The administration of discipline is one of the most important dimensions of the employment relationship. Legally, Colorado is an employment-at-will state leaving the employer enormous discretion in the imposition of discipline, including termination of employment. That said, arbitrary and unfair imposition of discipline – even if legal – can have dramatic, adverse consequences for the employer.
For many employers, their largest investment is in their employees because of the training provided and experience developed. The principle goal with this investment is to protect and enhance it, to make an even better employee. Almost always, happ employee is a better employee, one who likes his/her work, derives self-worth from his/her work, and looks forward to coming to work. This investment can be quickly undone with poorly executed discipline and also the failure of an employer to impose discipline. Inaction on unacceptable behavior can be very discouraging for those employees working hard for the employer and lead to poor morale and high turnover, which wastes investment in employees.
Discipline is not and should never be the goal. Discipline is a tool to help the employer produce a happy, productive workforce.
The development and the design of a discipline policy should not start with the punishment that one might impose for various offenses. The policy should start first with the employer identifying what it wants to encourage and reward and then, what it wants to discourage or prohibit. Some of the prohibitions are obvious, such as unexcused absences, theft, substance abuse, violence, threats, and bullying. Articulating the values the employer may want to encourage is subtler, however, such as respect for co-workers, hygiene, or appropriate use of computer time. Depicting the company’s values and expectations for supervisors and managers may have to be quite detailed and should probably be reinforced in the written job description for the position. For instance, does the supervisor or manager understand that his/her job performance is based on how well he/she evaluates subordinates’ performances and how well that supervisor imposes discipline?
The employer should think through what it wants to reward and what it wants to discourage and then communicate these thoughts. The imposition of discipline should never be a surprise to the employee. A well-developed policy that is implemented correctly should almost always result in an employee acknowledging that he/she knew better. Granted, that acknowledgment will not always happen; but if the documentation is in place, it will be evident to any third party looking at the documents that the employee knew better and should have expected some level of discipline.
Finally, both the disciplinary policy and the imposition of discipline administration must seem to be, and actually be, fair from the perspective of the disciplined employee and co-workers. This goal requires the employer to be mindful of:
- the specific offense (How serious is the offense? Is it a repeat offense? What the potential practical consequences of such an offense?)
- prior “precedents” or past disciplines (Is discipline be applied consistently and fairly?)
- the future value of what it might do and what message the employer wants to send for future purposes (How can this conduct be prevented in the future, while maintaining fairness and morale?).
Progressive discipline policy
There are no specific requirements with a disciplinary program to make it “legal.” It does not have to be in writing. It does not have to be progressive, for instance, based on verbal warnings, written warnings, suspension, and termination. Because Colorado is an employment-at-will state, the employer can, if it wants, fire an employee for any reason – so long as there is no illegal discrimination. But if the employer wants to build a relationship with its employees that is premised on mutual respect, resulting in growth in job skills, loyalty to the employer, and a commitment to improvement in job performance, it is recommended strongly that the employer adopt a discipline policy that is progressive and carefully and completely stated in writing.
Almost all of the prohibitions on illegal discrimination, or protected classes – disability, age, gender, sexual orientation, sex, creed, genetic information, religion, ethnicity, race, receipt of workers’ compensation benefits, concerted work activity, whistleblower, etc. – are triggered by an “adverse employment action.” Unequal pay, unequal benefits, and time off can be forms of an adverse employment action. However, the vast majority of claims for illegal discrimination charge that the discipline imposed by the employer was the adverse employment action. In addition to all of the advantages of a thoughtful, well-crafted, and well-communicated written policy, the policy and the discipline imposed needs to be done in a way that reduces the chance of the discipline being considered adverse employment action motivated because the employee falls within a protected class. For the vast majority of employers, the starting point for a disciplinary policy should be a progressive written discipline policy. Such a policy gives the employee several chances to improve his/her performance with increasingly severe penalties with each failure. With each level of discipline, the goal is to educate the employee on what is being done incorrectly to motivate the employee to do better. It will also help immeasurably with managing the legal risks that arise from charges of illegal discrimination.
Even with a progressive disciplinary policy, however, the employer should communicate in writing that:
- certain specific conduct and offenses such as those listed below are not acceptable under any circumstances and will probably result in immediate termination
- that the employer retains the discretion to impose any level of discipline, including the termination of employment, for any reason.
The following are some examples of misconduct that the employer might want to identify as warranting immediate termination if established as true to the satisfaction of the employer:
- falsification of any records or reports pertaining to absence from work, claims pertaining to injuries occurring on company premises, claims for any benefits provided by the company, communications, or records including personnel and production records
- giving false fire alarms, or causing false fire alarms to be given or tampering with protection or safety equipment
- removal from the premises, without authorization, of any company property, or possession of any property removed from company premises without proper authorization
- bringing, using or having in possession weapons on company premises at any time (except as permitted by law)
- bringing, using, having in possession, transporting, selling or promoting the use of alcohol or illegal drugs, any intoxicant, any narcotic, any barbiturate, any amphetamine, any hallucinogen or any other stimulating or depressing drug on company premises at any time
- striking or manhandling another person or fighting while on company premises at any time
- any workplace violence and/or threats of violence
- theft of any property on company premises, or theft of company property at any time
- willful abuse, or deliberate destruction of company property, tools, equipment or of any property on company premises at any time
- altering any employee time card or sheet regardless of whether it is the employee’s own time card or sheet or that of another employee
- intentionally punching or signing the time card or sheet of another employee or having another employee punch or sign his or her time card or sheet
- conviction of any offense by a court of law, which in management’s judgment would make that employee undesirable for association with the company and its other employees
- altering, defacing or removing governmental or company notices and bulletins that are posted (on the company bulletin board)
- gaining unauthorized access to company records and files including electronic records and files whether they are locked or otherwise secured.
With less offensive conduct, the employer, through the progressive disciplinary process, should outline the discipline process that may occur with violations of less severe nature. 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 and – finally – termination. A progressive discipline policy makes employees responsible for individual violations, but also seeks to identify and correct patterns of misbehavior.
The challenge with a progressive disciplinary policy is to make it clearly understood to employees while at the same time retaining the flexibility as an employer not to be bound to offer the employee the full range of steps. The disciplinary policy should not be a contract with the employee, but should instead be understood as guidance for the employer and the employee on how discipline may be imposed. It is true that with less discretion retained to the employer, consistent penalties are more likely to be imposed which is very desirable, especially when defending a charge of illegal discrimination. At the same time, there are often circumstances surrounding the offense that suggest that a more or less severe penalty than usual might be appropriate. The written policy should retain the ability to exercise that discretion with the obligation resting with the employer to be able to explain why the penalty is different than what might normally be imposed for the offense.
The following are some examples of misconduct that the employer might want to identify as warranting discipline, up to and including termination, in the progressive policy:
- gross insubordination – a willful and deliberate refusal to follow reasonable orders given by a member of management
- violation of the company’s equal employment opportunity or harassment policies
- committing an indecent act while on company property regardless of whether the act was committed during the employee’s shift or workday
- threatening, intimidating, coercing or interfering with any person on company premises at any time
- handling or operating machines, tools or equipment that do not come within the employee’s authority
- careless or negligent use or operation of company tools or equipment
- failure to immediately report to management any injury or accident resulting from an on-the-job situation
- performing substandard work both in quality and quantity after having been instructed in proper procedure and technique
- unauthorized leave from the work area during the work schedule exceeding the time allowed for a scheduled break or lunch period
- unauthorized manufacture of products for personal use (including sale or gifts)
- unauthorized distribution of literature in the work area or posting on company property
- distraction of other employees, or causing confusion by unnecessary shouting, catcalls, whistling or demonstration while on company property
- punching or signing in more than 10 minutes prior to the start of the employee’s shift or workday, or punching or signing out more than 10 minutes following the conclusion of his or her shift or workday without authorized permission
- engaging in horseplay, practical jokes, gambling, selling merchandise, solicitation, or general loitering while on company property
- having non-employees on company property at any time without authorized permission
- using profane language on company property, which in management’s opinion is offensive to visitors and to other employees.
One of the highest values that an employer should stress in its company is safety. This value must be reinforced in the discipline policy.
Unsafe conduct at work must be disciplined. There may be some actions for particular employers that are so unsafe that immediate termination is warranted, such as failing to tie off when working at substantial heights. These should be clearly articulated and dealt with consistently. Normally, however, safety violations should fall into the progressive discipline process of verbal warning, written warning, etc. This point is true even when the unsafe conduct results in an injury to the employee who was acting in an unsafe manner. The concern arises that disciplining the employee who caused himself/herself a work-related injury will be perceived as some form of disability discrimination or illegal discrimination against a workers’ compensation claimant. The employer needs to weigh that risk against the importance of reinforcing the perception in the workforce that the commitment of the employer to safety is complete and thorough. Safety considerations should always prevail.
When crafting and then applying the policy, the employer should be mindful that it does not want its discipline program to discourage the reporting of unsafe working conditions. Towards this end, it may want to consider an amnesty type feature for those who self-report safety violations, at least for the first self-report.
As discussed in Discrimination, the National Labor Relations Act (NLRA) protects concerted activity, that is, employees discussing terms and conditions of employment. Conferences, emails, and chats that look to the employer like time wasters and performance problems can quickly be cast as concerted activity with the goal of employees trying to improve their work situation. Employers should be careful to focus on the when and where of this issue and not the substance of what was being done or spoken to avoid a charge of inhibiting concerted activity.
The relationship, and sometimes the lack of a relationship, between poor job performance and discipline is something that needs to be considered by the employer as it administers its discipline policy. Evaluations of job performance should be ongoing and not prompted by a specific episode of conduct as happens with discipline. At the same time, poor job performance may be the result of conduct that warrants some level of discipline.
Consider two clerical employees who both have low productivity. One employee’s lack of productivity is because he spends too much time on computer social networks and emailing friends. The other employee’s lack of productivity is because she really does not understand the work. Eventually, if not corrected, the poor performance should result in termination, often regarded as a disciplinary step. While the outcome may be the same, the process for the two is different. With the first employee, the performance is due to conduct that the employee can control: social networking. With the other employee, the poor performance appears to be from a lack of ability or training and the challenge is how to improve performance given the lack of training or ability. Discipline may be an appropriate tool to induce the first employee to change his conduct. With the second employee, education and training should be the focus with identifiable performance benchmarks stated in writing by which both the employer and the employee can see if there has been improvement.
One of the most consistent shortcomings of performance evaluations is the unwillingness of the supervisor to assess accurately the performance of workers. It is the rare supervisor or manager who does not contribute to grade inflation by awarding “Exceeds Expectations” to workers who are actually performing substantially below that level. This inflation is understandable because it is natural for supervisors to want to be liked by their co-workers; however, it is more likely to happen because supervisors do not look at performance evaluations through the lens of discipline. More times than not, poor performance is the result of conduct that violates an expectation or rule of the employer and that the employee can change. Employers should be mindful that discipline may be a tool for improvement of performance as well, not just keeping the peace.
Steps in the disciplinary process
Documenting disciplinary actions
Documentation should begin before the need for disciplinary action becomes apparent. Supervisors, managers, human resource employees – anyone responsible for the conduct of others – are encouraged to maintain on a regular basis – daily, weekly, whatever works for that individual – a log of some form that documents very briefly by date those matters that the supervisor or manager thinks might be worth remembering. These written notes have several purposes:
- They support failed memories.
- They can be invaluable when a manager sits down to write up an annual or semi-annual job performance for an employee. An evaluation based on a review of a well-kept log will be much more valuable and accurate than one prepared on memory (the memory will almost always focus on the last several weeks vs. the prior six months that is the subject of the evaluation).
- The log or record maintained by the supervisor or manager will be very helpful for establishing the basis for discipline. An employee confronted with a six-month written record of mistakes will be much less inclined to dispute the supervisor’s assessment of the work or need for discipline. It will move the conversation much more quickly on how to stop the conduct.
If, after reviewing the log or record, the employer concludes that some level of discipline is justified, the employer must keep organized, written records of the disciplinary action taken. Every act of discipline taken against an employee needs to be documented and placed in the employee’s disciplinary file, including verbal warnings (a “verbal warning” is “verbal” in name only and also needs to be stated in writing with a copy given to the employee).
All disciplinary records should be accurate, detailed, and objective. If the employer 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 employer’s expectations in order to avoid further discipline or termination, 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.
Conduct an investigation
Once misconduct is suspected, the employee’s supervisor, another management official, or an independent party such as outside counsel 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.
Interview the employee
The employee suspected of misconduct should be interviewed as soon as possible after the alleged misconduct. The interview should be conducted in private, away from other employees. If possible, the supervisor should have another supervisor 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 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/her 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.
Interview all witnesses
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. The investigator should encourage the witnesses and co-workers not to discuss the subject matter with anyone.
Evaluate the possibility of a discrimination or retaliation claim
Before making any decision to terminate, the employer should consider the state and federal laws prohibiting discrimination and retaliation (see Discrimination) and evaluate whether the decision could trigger an employment discrimination or retaliation claim. The employer should take into account:
- Consider the employee’s protected groups. After doing so, review the facts and consider engaging counsel to reduce the chance that imposing discipline might lead to a claim of illegal discrimination.
- What is the make-up of the remaining workforce from the standpoint of protected categories?
- Will the employee be replaced, and by whom?
- What is the employee's tenure?
- Is there a written contract with the employee?
- Was the rule the employee violated a published rule? How? Where? When?
- Did the employee receive a copy of the violated work rule (for instance, in a policies and procedures manual or handbook)? Was the rule posted elsewhere?
- Has the employee been warned previously for a violation of the work rule? By whom?
- Does the documentation in the personnel file support the termination?
- Has the employee recently filed a workers’ compensation claim, an equal opportunity commission charge, or any other type of claim with a federal or state agency?
- Has the employee complained that he or she believes the employer has engaged in prohibited discrimination?
- Has the employee been involved in an internal investigation during which he or she provided information about alleged discrimination, harassment or retaliation in the workplace?
- Is the justification for the termination consistent with past practice, procedure and treatment of similarly situated employees?
At the close of the investigation, the personnel department or management staff should review the information gathered. 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
- the duration and nature of the discipline.
The personnel director or some other appropriate management official should approve all decisions regarding severe disciplinary action in order to ensure the adequacy of the investigation and the fairness of the disciplinary action to be taken.
Communicating the decision
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 the offense 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 the employee, the purpose of which is to verify that the employee 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 made to a management official who was not involved 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.
Levels of discipline
In general, 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 future infractions will result in further discipline. Documentation that the verbal warning was given should be kept in the employee’s file and provide a copy to the employee.
If the employee disregards a verbal warning or if the violation is more severe than that which would warrant a verbal warning, a written warning may be in order. 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 its receipt. The original warning should be kept in the employee’s file.
Suspension or probation
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. As a result, some companies may prefer to use probation instead of suspension but both should be considered as the equivalent of a “final warning” with termination of employment as the next action if matters do not improve. Because of the gravity of suspension or probation, the employer should confirm either that the offense warrants such a level of discipline, or prior verbal and written warnings have not produced the change in behavior the employer wants.