In the last decade, there has been a nationwide increase in employment discrimination suits arising from disciplinary action or discharge decisions and it is important for employers to have in place appropriate disciplinary procedures to reduce their exposure to lawsuits. Such procedures, if applied consistently and fairly, are an important part of enforcing company rules and policies, encouraging a more efficient working environment and placing employers in a good position to defend against claims from employees.
An established company discipline policy is key to the success of employee disciplinary procedures. Though discipline policies vary with regard to the specifics of prohibited conduct and the amount of discretion given to supervisors (in terms of deciding how to discipline an employee), it is important that all discipline policies be administered fairly and consistently and communicated effectively to employees.
Some employers may desire a more fixed discipline policy. Employers that do not want open-ended discipline policies may implement a progressive discipline policy, one that sets forth various potential types of employee misconduct and the penalty for each type. A progressive discipline policy assigns specific penalties for employee misbehavior that increase in severity with each subsequent offense. For instance, the first violation may result in a verbal warning, the second in a more severe penalty such as probation or a written warning and the third in suspension or termination. A progressive discipline policy makes employees responsible for individual violations, but also seeks to identify and correct patterns of misbehavior.
The lack of decision-making placed in the hands of supervisors under a progressive discipline policy can be beneficial to both employers and employees. From an employer’s perspective, it is less likely that supervisors will unevenly discipline employees because they do not personally determine the penalty for every offense. Meanwhile, employees are more likely to respond quickly to warnings of infractions because the violation is immediately brought to their attention and the penalties for future violations are predetermined.
The inflexibility of the progressive discipline policy however is also its biggest potential disadvantage. The progressive discipline policy does not take into account any outside factors surrounding a violation that may exist. For instance, a company may not wish to punish an employee who misses work due to a family emergency in the same manner as an employee who misses work for less legitimate reasons. It is important that supervisors maintain some level of discretion in order to ensure that the disciplinary action is appropriate. Also, as with any disciplinary policy, a progressive disciplinary policy must be enforced consistently to be effective.
A company may wish to afford greater discretion to supervisors and adopt a flexible discipline policy. A supervisor is often in the best position to determine the gravity of the offense and the appropriate disciplinary measure to impose. The difficulty with leaving discretion in the hands of the supervisors is the possibility that discipline will be unevenly applied. Therefore, supervisors must be trained to be consistent and fair when disciplining employees.
Companies must make sure to keep organized, written records of all disciplinary actions taken against its employees. Every act of discipline taken against an employee needs to be documented and placed in the employee’s disciplinary file, including verbal warnings. All disciplinary records should be accurate, detailed and objective. If the company ever needs to defend itself against a claim of discrimination, the employee’s personnel file is often an effective means of convincing a judge or jury that the company’s decision to discipline an employee was based on legitimate, non-discriminatory reasons.
As soon as problems develop, a supervisor should discuss them specifically with the employee and suggest ways of correcting the situation. Any such discussions should be documented and kept in the employee’s file. Copies of oral and written warnings should also be placed in the personnel file and the supervisor should notify the employee of the employee’s expectations in order to avoid further discipline or discharge, including a time-frame for correction if applicable. Disciplinary action should be taken as quickly as possible following misconduct in order to avoid suspicion of an improper motive for disciplinary action and the discipline taken should be documented accordingly.
A company must be careful in its choice of language to describe an employee’s conduct and cause for discipline. A supervisor should not use terms that could be viewed as a reference to an employee’s psychological or medical condition, as such comments could allude to the Americans with Disabilities Act (ADA). The supervisor also should list specific examples of misconduct rather than using a blanket criticism of an employee’s character.
Verbal warnings should be given for relatively minor violations of the company rules. A supervisor should speak to the employee in private with another supervisor present (who can later verify what transpired). The employee should also be informed that further discipline will result future infractions. Documentation that the verbal warning was given should be kept in the employee’s file.
If the employee disregards a verbal warning or if the violation is more severe than those warranting a verbal warning, a written warning may be warranted. A supervisor should discuss the warning with the employee to ensure that the employee understands the reasons for the disciplinary action. A copy of the warning should be given to the employee at the time of the discussion and the employee should be asked to sign and date the warning, acknowledging that she has received it. The original warning should be placed in the employee’s file. An employer should follow its retention and destruction policies for maintaining these records. Length of retention may be based on the substance and seriousness of the situation and employers should use their best judgment based on discipline actions and culture of the organization. As with any documents, there should be a reasonable basis for the retention period and it should be consistent with times established for other records.
Suspension is a form of discipline usually administered only for severe infractions of the rules or for excessive violations after at least one written warning. Some employers may not wish to use suspensions since they are very public and can be humiliating to the employee. Some companies may prefer to use probation instead of suspension. Regardless of whether a company prefers to use probation or suspension, there are several basic steps that an employer should make before severe disciplinary action is taken.
Once misconduct is suspected, the employee’s supervisor or another management official should immediately begin an investigation. If negative consequences result from the misbehavior, then action should be taken to correct them in order to minimize the impact of the misconduct. The initial investigation should yield enough information to conduct a more thorough investigation.
The employee suspected of misconduct should be interviewed as soon as possible after the misconduct. Even if the employer cannot envision any possible explanation for the alleged behavior, it is very important to get the employee’s version or view of what happened. The interview should be conducted in private, away from other employees. If possible, the supervisor may wish to request another supervisor be present to later corroborate the investigator’s account of the conversation. The employee should be given an opportunity to explain what happened, including the chance to identify all witnesses that the employee believes would have information relevant to the investigation. At the close of the interview, the investigator should inform the employee that someone will contact him after the investigation is complete. If the suspected behavior is serious, the employer may wish to consider suspending the employee, with or without pay, while the investigation is ongoing.
After interviewing the employee, the investigator should interview all other witnesses who may have knowledge of the facts. Again, these interviews should take place as soon as possible. The interviews should be conducted separately and in private. The investigator may wish to take signed statements from all witnesses.
At the close of the investigation, the information gathered should be reviewed by the personnel department or management staff. Any files that shed light on how similar misconduct by other employees was treated in the past should also be examined. To aid in this process, the company may wish to institute a recordkeeping system that has a separate file for each company rule or policy.
If disciplinary action is to be taken, the supervisor should place everything in writing to serve as a record. The record should describe the nature of the misconduct, including the date and time of the offense, a description of the events surrounding the incident, the company rules or policies violated by the employee and the duration and nature of the discipline. All decisions regarding severe disciplinary action should be approved by the personnel director or some other appropriate management official in order to ensure the adequacy of the investigation and fairness of the disciplinary action to be taken.
Once a final decision is made, the employee should be allowed to review the company’s written account of the incident. The employee should understand the nature of the offense, the company rules it violated, the nature of the disciplinary action and finally what action the company will take if there is another violation of company rules. The employee also should sign the disciplinary action record presented to her, the purpose of which is to verify that he saw the document.
Some companies may want to provide employees with a right to appeal any discipline decision more severe than a written warning. This appeal should be to a management official who had no involvement in the investigation or discipline process. If a company chooses to allow appeals, the employee should be given a reasonable time in which to give written notice of appeal to the appointed management official.
The final decision to discharge any employee should not be made exclusively by his direct supervisor. Two levels of management should be involved and, if there are difficult or extenuating circumstances, an attorney should be consulted before a decision is made. See the next page, Chapter 24: Termination.
Policies and Forms
Chapter 21: Discipline