(Last Updated 03/31/2018)
Discipline is something none of us ever want to face, nor is it something we thought we would face when setting out in our post-graduate medical education. Facing disciplinary action is often extremely stressful, uncertain, and can feel like the deck is stacked against you. We at the UWHA are here to help you, but please be aware that our ability to help with disciplinary issues is somewhat limited. Below is a list of the things you will find in this article:
- First Things First – Weingarten Rights
- What Does Enforcing Weingarten Rights Mean?
- When Are Residents Not Allowed to Have a Union Representative Present?
- Academic Discipline at the University of Washington
- Focus of Concern
- What To Do After You Are Placed on Academic Discipline
- Non-Academic Discipline
As a member of a labor union you have certain rights known as Weingarten Rights. These were declared by the Supreme Court in 1975 in NLRB v. J. Weingarten, Inc. and are in place to protect employees when they must meet with their supervisors. Weingarten Rights can be enforced only during Investigatory Interviews.
So, what is an Investigatory Interview? Investigatory Interviews are conversations which are defined by when: (1) a supervisor (such as a Program Director) questions an employee to obtain information; and (2) the employee has a reasonable belief that discipline or other adverse consequences may result. Please note that if a decision for disciplinary action has already been made and the sole purpose of the meeting is to communicate that decision, then these rights would not be in effect as this is considered a Disciplinary Announcement, not an Investigatory Interview.
The most important thing to remember is that Weingarten Rights are only in force if the resident SPECIFICALLY requests them to be enforced. Program Directors and other administrators do not have to inform you of these rights, nor ask if you would like to enforce them. To enforce your Weingarten Rights when called to speak with your Program Director, or other administrators, you should say the following:
“If this discussion could in any way lead to my being disciplined or terminated, or affect my personal working conditions, I respectfully request that my union representative, officer, or steward be present at this meeting. Until my representative arrives, I choose not to participate in this discussion.”
To request a Union representative please email us here. In the subject of the email put “URGENT – Union Representative Needed ASAP!” If you would like to request a specific member of the board or program liaison from the UWHA to be your representative, please include that in your email.
When you enforce your Weingarten Rights then the following rules apply to the conversation or are having with your Program Director or another administrator:
- The resident can request union representation before or at any time during the interview. The resident CAN NOT be punished for making this request.
- When a resident asks for representation, the Program Director (or other administrator) must choose from among three options:
- Grant the request and delay questioning until the union representative arrives;
- Deny the request and end the interview immediately; or
- Give the resident a choice of: (a) having the interview without representation or (b) ending the interview.
- If the Program Director denies the request for union representation and continues the meeting, this is an unfair labor practice (ULP) and the resident has a right to refuse to answer questions. The resident cannot be disciplined for such refusal but is required to sit there until the Program Director terminates the interview. Leaving before this happens may constitute punishable insubordination.
These rights give you the right to have a Union Steward (i.e. a representative from the UWHA) present to support you during these conversations with your Program Director or other administrator. Union Stewards who are asked to participate in an Investigatory Interview have the following rights:
- The supervisor or Program Director must inform the steward of the subject matter of the interview: in other words, the type of misconduct being investigated
- The steward must be allowed to have a private meeting with the resident before questioning begins.
- The steward can speak during the interview, but cannot insist that the interview be ended, and cannot interfere with the interview or be disruptive.
- The steward can object to a confusing question and can request that the question be clarified so that the resident understands what is being asked.
- The steward can advise the resident not to answer questions that are abusive, misleading, badgering, or harassing.
- When the questioning ends, the steward can provide information to justify the resident’s conduct.
The biggest advantages of having a Union Steward present is that that they can provide support for you during these stressful meetings, they can serve as a witness for you regarding the content of the discussion if needed at a later date, and having the change to consult with a representative before questioning can help ensure you are mentally and emotionally prepared to face this meeting.
An employee has NO right to the presence of a Union representative where:
- The meeting is merely for the purpose of conveying work instructions, training, or communicating needed corrections in the resident’s work techniques.
- The resident is assured by the program prior to the interview that no discipline or employment consequences can result from the interview (though the resident can make a request if he/she has reason to believe that the purpose of the meeting changes midway through).
- The program has reached a final decision to impose certain discipline on the resident prior to the interview, and the purpose of the interview is solely to inform the resident of the discipline or to impose it, with no investigative questioning.
- Any conversation or discussion about the previously determined discipline which is initiated by the resident and without program encouragement or instigation after the resident is informed of the action.
Even in the above four (4) circumstances, the resident can still ask for representation. Some programs will permit a representative to attend even when not required to.
Academic Discipline is a specific type of discipline a resident may face and specifically regards academic performance in some regard. In our sad experience, academic discipline of residents by their training programs can tend to be more punitive rather than corrective. In the UWHA, we feel that the purpose of academic discipline should be to remediate residents so they may gain those necessary skills to be successful physicians in their chosen medical specialties. We are working hard to ensure that academic discipline is truly constructive rather than destructive.
With that being said, we fully acknowledge that the training programs have the responsibility to ensure trainees are progressing as they need to in order to be safe and successful physicians by the end of training. We defer a lot of these decisions to the programs. However, this does not mean that we can’t support residents as they face academic discipline. Also, we are working to guarantee residents have certain protections when facing actions like a Focus of Concern (see below).
To learn more about academic discipline at the University of Washington see the GME’s policy here. Also, please be aware that if you have feel you have been treated unfairly as you go through the academic discipline process the University has a specific grievance process which you can go through outlined in the Academic & Professional Conduct Policy & Procedure. Unlike the grievance procedure set forth in the UWHA contract, the academic grievance process does not result in a decision by a neutral, unbiased arbitrator, and therefore the residents must be prepared from the onset of disciplinary action to protect themselves (see below).
A Focus of Concern is usually the first official step of the academic discipline process. This is a relatively common form of academic discipline; if you face it, know that you are not alone. A Focus of Concern is typically not reportable after graduation to things like certification Boards, Licensing Bodies, and Hospitals when considering privileging. This is not the case with actions such as probation and suspension which are reportable actions.
Our current CBA specifically states, “A focus of concern is not considered a disciplinary action, and is therefore not grievable” (UW-UWHA CBA Article 4). However, all Focus of Concern letters will include the statement “failure to perform satisfactorily in all of the areas of this Focus of Concern will result in progressive disciplinary action up to and including probation, suspension, or dismissal from the program.” In light of this warning of potential discipline, residents asked to discuss a Focus of Concern with a Program Director should seriously consider invoking Weingarten Rights.
In our experience, some programs do not have a clear goal in mind when they place a resident on a Focus of Concern and for this reason, programs can have a tendency to change the requirements placed upon resident, which can be incredibly frustrating. The UWHA believes that it is the responsibility of the academic programs to have a clear plan of how to remediate residents placed on a Focus of Concern. Residents must protect themselves though, and be mindful in their first meeting with their Program Director to set themselves up for success. We recommend residents insist the following things be included in their Focus of Concern:
- A complete list of all the programs concerns and alleged deficiencies of the resident
- Clear plans by which these concerns and deficiencies will be remediated.
- Make sure you understand all that will be expected by you
- If you will have to demonstrate certain skills, ask when and how you will be doing this
- If you will have to repeat certain rotations, make sure you know when you be repeating the rotation and what effect this will have on graduation
- You don’t have to sign until there is a clear plan for remediation
- Ensure there are well-defined metrics by which you will be judged to determine you have successfully remediated the concerns or alleged deficiencies the program has brought against you.
- Insist the program give you a timeline or deadlines for completing the things they are asking you to do.
- This will help ensure that the program can’t drag on a Focus of Concern indefinitely (which has been done before)
- Realize that this also makes you accountable; if you don’t meet the deadlines the program can move to more grievous disciplinary action
- Make sure the timelines or deadlines are reasonable and that you can reasonably do what you are asked to do in the allotted time
We will be fighting during our next round of contract negotiations to ensure these protections are in our CBA, but for now, you can advocate for yourself (or a Union Representative can advocate for you if you enforce your Weingarten Rights). Insist your Program Director includes these in your Focus of Concern. Know that you can always request the GME review the Focus of Concern (which they are supposed to do any way), and ask the GME to make sure the Focus of Concern is clearly written.
Please realize that these suggestions do not only apply to a Focus of Concern but all types of academic discipline.
After being placed on Academic Discipline many residents feel they are left on an island to fend for themselves. This should never be the case, but it can be hard to figure out who is on your side. Of course, you need to be on your own side and you need to do everything you can to ensure you will be successful. The UWHA can help support you through this process as well.
Hopefully, you were successful in getting a clear discipline letter drafted by your program. You always have the right to ask for the GME to help as well if you feel your program is asking for things which are unfair or unclear, and this is all best done before you sign your discipline letter. If you still need clarification after you have signed your discipline letter, you can always go back to your Program Director and ask for clarification.
Once you have clear expectations and have signed your discipline letter, it is now your responsibility to not only ensure you do what you’ve been told to do, but to also document that you have done what you were told to do. Make sure you are creating a paper trail to prove you are fulfilling the requirements placed on you. You should keep a record of what you are doing to fulfill these requirements, and how you are improving. You should record when attendings you work with give you on the fly feedback that signifies you are completing the requirements of your discipline letter. You should tell attendings you work with that you are trying to improve certain things and ask them to help you do this, and then comment on your progress in their end of rotation evaluations. There are many ways to prove you are completing the requirements set forth in the discipline letter, get creative, but always keep a record and know that it is your responsibility to PROVE you have done what you were told to do.
You may face your program either trying to extend a disciplinary action or advance to a more impactful disciplinary action. This is why keeping your own records and creating a paper trail is so vital. Know that if you are prepared, you can, and should, fight for yourself. With your records and proof in hand you can insist the program take you off disciplinary action if you have completed what was required of you. Don’t be afraid to reach out to the UWHA or the GME to put pressure on your program to end disciplinary action or prevent progression of disciplinary action when your program is treating you unfairly. Also, know that if you have to go through the Academic Action Review Procedure you may feel like you are assumed guilty until proven innocent, and the responsibility to prove yourself innocent will rest on you. You can have people to help you, but you should set yourself up for success.
After a resident is off academic discipline they sometimes feel their relationship with their Program Director is strained. In these instances it is a good idea to reach out to the GME or the Designated Institutional Officer (currently Dr. Byron Joyner) to determine what can be done to repair any strained relationships or to determine if someone else can be identified to be your individual primary educator and administrator other than your Program Director.
This is less common, but if faced with non-academic discipline know that many of these situations are grievable under the current UW-UWHA CBA. If you face such a situation, you should contact the UWHA to discuss your options. Be aware that ther are timelines in the contract that the UWHA must meet to be able to file a grievance, so be sure to contact the UWHA right away if you find yourself in this situation. Also, during conversations leading to non-academic discipline, please keep in mind that you can enforce your Weingarten Rights.