EMPLOYEE DISCIPLINARY PROCESS (PART 1) – Practical Considerations Series

    Loren K. Allison, attorney at law 803 S. Calhoun St., Suite 300, Fort Wayne, Indiana 46802 (260) 407-0040 This is part of a “hands on guide” to assist you in the legal discipline and discharge of employees as presented by Fort Wayne Business Attorney Loren Allison, covering the following topics & more! Download your copy by clicking here (PDF)

    Discipline must be meted out on a consistent basis. Two questions that employers should ask before deciding upon what discipline to mete out is: (1) “What actions have we taken in the past under similar circumstances?”; and (2) “Are there any circumstances that would justify departure from the practice?”

    Inconsistency in the application of discipline is a serious problem and one that costs employers dollars if challenged and proven in arbitration, by the EEOC, NLRB, or a judge/jury! It is imperative that discipline follow reasonably close in time from the conduct for which the employee is being disciplined. Any inexplicable delay in discipline is considered to be most unfair and could be utilized to set aside the discipline. Moreover, discipline is far less likely to have the desired result when it is not meted out reasonably close in time to the acts for which the employee is being disciplined.

    Finally, even though similar situations should be treated similarly, an employer need not treat every situation the same where legitimate circumstances justify a disparity in treatment. For example, a manager or supervisor can be held to a higher standard of performance than non-management employees and can be discharged for conduct previously tolerated in hourly workers.

    More than any other factor, the presence or lack of adequate documentation is the most important consideration in determining whether or not you win or lose a lawsuit or charge of discrimination, and, in many cases, it is the determining factor as to whether or not the former employee or current employee even files a suit or charge. In addition to being important evidence, documentation is frequently a deterrent to even the commencement of legal proceedings by a disgruntled employee or former employee. Individuals who know that their deficiencies have been documented realize their chances of success are limited and simply forego instituting legal proceedings.

    Most managers and supervisors are understandably reluctant to take the additional time needed to put something in writing that could just as easily be communicated orally. However, “an ounce of prevention is worth a pound of cure.” Not only is this important because it deters litigation, but it is helpful in defending a lawsuit in that it assists a supervisor or manager in refreshing his/her recollection as to the facts and circumstances surrounding a particular employment action.

    I recommend the following:
    The document be dated;
    The document be signed by the person preparing it;
    The employee’s deficiencies should be thoroughly set forth;
    The employee should be told what the next step will be if the needed improvement is not shown, i.e., discharge, suspension, etc.
    The document should reflect the fact that the employee is being told that it will go in his/her file; and
    The employee should sign the document if possible.
    The importance of this cannot be minimized. It is quite common for an employee or former employee to claim either that he/she was never disciplined or that, in any event, he/ she was never told that any document would be placed in the employee’s personnel file. Obviously, such claims are entitled to little consideration where the employee’s signature appears clearly on the disciplinary document.

    Not so incredibly, courts are beginning to find a breach of an “implied contract” for failure to follow a progressive discipline policy in employee handbooks. This is consistent with the number of reported cases throughout the country in recent years in which employers have been found to have breached implied contracts with employees for failure to follow other personnel policies.

    To minimize their exposure to liability with respect to progressive disciplinary action procedures, employers should carefully consider the following:
    1. Do not include the progressive disciplinary procedure in the employee handbook.
    The purpose of a progressive disciplinary policy is to provide guidelines to employees and supervisors in connection with the administration of discipline. The more widespread the dissemination of the policy, the more likely that employees will rely on the policy and will challenge the employer’s actions if not followed perfectly.

    2. Employers should include a general statement regarding discipline in their handbook which states:
    If your job performance, conduct, or demeanor becomes unsatisfactory in the sole judgment of the company, based on violations of any of the company’s policies, procedures or rules, you subject yourself to corrective action, up to and including dismissal.

    3. Employers who implement progressive disciplinary action procedures should include such procedures in their supervisory policy manuals.
    The following is a list of steps that supervisors may follow in administering corrective action. However, these are guidelines only and any deviation from the ‘steps’ of this process may be initiated at the company’s sole discretion, dependent upon the nature of severity of the offense involved.

    4. Such rule of conduct should be disseminated to employees, with the caveat that they are mere guidelines for corrective action and do not imply
    any sort of contract/guarantee with the employee.

    As a result of the numerous “at-will” decisions which have arisen in recent years, employers must avoid creating such “warranties” with their employees. Therefore, they must ensure that they “sanitize” their policies and procedures that appear in handbooks and manuals to preclude either (a) inadvertent creation of a promise, or (b) a restriction on their right to take action against an employer.

    You should have a list of offenses, generated from the supervisors who have an “ownership interest” in them, that will result in discipline, distributed in conjunction with employee handbooks and posted on appropriate bulletin boards. This list should be reasonably specific but should include at least one general, catch-all offense that is broad enough to cover unanticipated instances of misconduct.

    Of the many such lists that have been developed, I favor one that has approximately twenty offenses. A greater number creates the danger of being trapped by the “jailhouse lawyer” employee who will argue that he/ she did not commit the specific offense with which he/ she is charged. A lesser number generally means that the offenses are so broadly worded that they do not give the employee reasonable advance notice of the type of conduct that is being condemned.

    Article by Loren K. Allison, attorney at law
    Call For A Consultation: (260) 466-5205