In recent years, employers nationwide have seen an increase in employment discrimination suits arising from disciplinary actions and dismissal decisions. To avoid this type of claim, an employer should establish consistent, appropriate disciplinary procedures. When an employer uses disciplinary procedures in a fair and uniform manner, the process:
An employer should establish standard discipline policies to apply to its employees. While discipline policies vary based on the type of business and the amount of supervisor discretion (concerning how to discipline an employee), the employer should administer all discipline policies fairly and consistently and clearly communicate them to employees.
Some employers may desire a fixed discipline policy. A progressive discipline policy sets forth various types of employee misconduct and a corresponding penalty for each type. The specific penalties that apply to each violation of policy 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.
A progressive discipline policy removes discretion from individual supervisors to discipline employees. This aspect may be beneficial for both employers and employees. From an employer’s perspective, supervisors will be less likely to unevenly discipline employees because they do not personally determine the penalty for offenses. Meanwhile, employees are more likely to quickly correct their behavior because the supervisor generally immediately brings the violation to their attention, and penalties for future violations are predetermined.
The inflexibility of the progressive discipline policy, however, also is has its flaw. A progressive discipline policy does not take into account the context of employee misconduct. 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 because he or she regularly oversleeps. 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. The difficulty of leaving discretion in the hands of supervisors is the possibility that individual supervisors will unevenly apply discipline. Therefore, the employer should train supervisors to be consistent and fair when disciplining employees.
Employers should keep organized, written records of all disciplinary actions taken against employees. An employer should document every act of discipline taken against an employee, including verbal warnings, and should place the documentation in the employee’s personnel record. All disciplinary records should be accurate, detailed, and objective. If the company needs to defend itself against a claim of discrimination, an employee’s personnel record is often an effective way to show a judge or jury that the company’s decision to discipline the 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. The supervisor should further document these discussions and retain the documentation in the employee’s record. Copies of oral and written warnings should also be placed in the personnel record.
The supervisor should notify the employee promptly and clearly of the employer’s expectations so that the employee may avoid further discipline. The employer may also want to instruct its supervisors to include a time-frame for correction, if applicable. An employer should take disciplinary action as quickly as possible to avoid an employee’s suspicion that it has an improper motive.
An employer must carefully choose the language it uses to describe an employee’s conduct and cause for discipline. A supervisor should avoid any terms connected to an employee’s psychological or medical condition. Such comments could be used to support a claim that the discipline was based on the employee’s condition in violation of the Americans with Disabilities Act (ADA). The supervisor also should list specific examples of misconduct rather than focusing the critique on the employee’s character.
Verbal warnings should be given for minor violations of company rules. A supervisor should speak to the employee in private with another supervisor present (to witness and verify the interaction), and should document the warning for retention in the employee’s personnel record. The supervisor should also inform the employee that future infractions will result in further discipline.
If the employee disregards a verbal warning or if the violation is more than minor, 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 placed in the employee’s record.
When an employee severely violates policy or has previously received a written warning, the employer may choose to suspend the employee. Some employers may not wish to use suspensions since they are public and may be humiliating to the employee. For this reason, some employers use probation as an alternative. Regardless of whether an employer uses probation or suspension, it should take several basic steps before implementing these more severe forms of discipline.
When an employer suspects misconduct, the supervisor or another management official should immediately investigate the incident. If negative consequences result from the misconduct, the employer should take action to minimize the impact of them. The initial investigation should yield enough information to conduct a more thorough investigation.
The supervisor should interview the employee suspected of misconduct as soon as possible after the misconduct. The interview should be conducted in private, where other employees will not be alerted to the investigation. If possible, the supervisor may wish to request the presence of another supervisor to corroborate the investigation findings. 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 or her at the conclusion of the investigation. If the suspected behavior is serious, the employer should consider suspending the employee while the investigation is ongoing.
After interviewing the employee, the investigator should interview all other witnesses who may have knowledge of the facts. The investigator should interview each witness separately and in private. These interviews should take place as soon as possible after the suspected misconduct. The investigator may request signed statements from all witnesses to support his or her findings.
At the close of the investigation, a human resources or management representative should review the investigation notes and documents. This individual should also review personnel files to determine whether any of the involved employees have engaged in similar misconduct in the past. For efficiency, the employer may want to maintain a separate file pertaining to each company policy, including relevant documentation of violations and discipline.
If an employer decides to take disciplinary action, the supervisor should put its conclusion and disciplinary action in writing. This 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. The human resources director should approve all decisions regarding severe disciplinary action to ensure the adequacy of the investigation and fairness of the disciplinary action to be taken.
Once a final decision is made, the employer should give the employee an opportunity to review the company’s written account of the incident. The employee should understand the nature of the offense, the relevant company policy, the nature of the disciplinary action, and any action the company will take if there is another violation of company rules. The employee also should be asked (but not required) to sign the disciplinary action record presented to him or her to verify that he or she saw the document.
Some companies may want to provide employees with a right to appeal disciplinary decisions. The employer should detail in its handbook the procedure for appealing a disciplinary decision. It should specify that the employee should direct an appeal request to a management official who had no involvement in the investigation or discipline process. The employee should be given a reasonable time in which to give written notice of appeal to the appointed management official.
The employer should ensure that when it terminates an employee, the employee’s direct supervisor does not exclusively make the final decision. The employer should involve two levels of management and may want to consult an attorney before it makes a decision. See Chapter 24: Termination.
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