EMPLOYEE DISCIPLINARY PROCESS (PART 2) – 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)

    The possibility of an employee being “fired on the spot” for any offense should not even be a possibility. The maximum authority any supervisor should have is to suspend an employee pending further investigation. Immediate supervisors should be given the right to recommend termination but should not be permitted to fire an employee. Frequently, the immediate supervisor is too emotionally involved with the employee and the termination decision to be objective in reviewing the facts.
    Also, supervisors frequently are not well enough versed in company policy and legal consideration to assess whether discharge is an appropriate penalty. It is advisable to have a management executive who is well versed in the legal consideration review all requests for termination. This person should have the authority to deny a termination request and make the employee aware ofwhat action has been decided upon.
    In a unionized facility, the employee has the right to request a union representative to be present where the employee “reasonably believes” disciplinary action may be issued against him. The unionized employee does not have a right, however, to union representation where the meeting is simply to tell the employee what action has been decided upon.

    For those of you who have some kind of internal review, appeal, or grievance procedure, your handbook should designate that procedure as the employee’s “exclusive right of review.” Or if you do not have such a policy, consider one because the presence of such a procedure could assist in portraying the plaintiff-employee to a jury as not being concerned enough with his or her job to even follow the internal mechanism provided by management. Also, consider it for union avoidance.
    Generally, an effective procedure should include:

    1. A provision for the employee to put any complaint or problem into writing and sign it as conditions for review;
    2. Provide assistance to the employee by the personnel department in putting the complaint or problem into writing;
    3. Review by one or more levels of management not involved with making the decision of taking the action complained of;
    4. Offering to provide the employee with an “advocate” from the personnel department to assist the employee in presenting his or her position in a face-to face meeting;
    5. A written response by management within a reasonable period of time; and
    6. A provision specifying that the review procedure is the exclusive means of raising and resolving formal complaints, grievances or problems.

    Never make the decision to discharge prior to interviewing the employee. Nothing appears more unfair to a jury/arbitrator than to hear an employee testify that the company never asked for his or her side of the story. After the interview, tell the employee that no final decision on termination has been made and that the employee’s input will be given consideration. In a union setting, if asked, have a union representative present. Also, this interview can be used to pin the employee and his/ her story down. Again, use this as an opportunity to find out the facts.
    Have the supervisor present during this interview unless the employee is intimidated or less than candid while the supervisor is there.

    It may appear that termination is not the appropriate penalty. For example, a long-time employee with a good record may have developed attendance problems in the preceding months. A leave of absence, therefore, may be more appropriate than termination. If the attendance problems do not resolve themselves, it will appear before a judge/arbitrator that you have gone above and beyond the call of duty in giving the employee one final chance. In other words, it is better to back down today and live to fight and discharge another day. Employee relations is like playing chess; make good moves and make the final move lasting/final. Why discharge if you are only 70% sure, when with one more occurrence you have a 90% “perfect” case?

    It is important to understand that facts will vary from situation to situation. When a reviewer looks at a request for termination, he/ she must fit the questions to the circumstances of that particular case. The importance of common sense, of course, cannot be overstated here.

    • Among the questions which a reviewer should consider are the following:
    • How long has the employee been with the company? Greater seniority needs a greater offense.
    • What is the employee’s age, sex and minority group status? Disability status? Be mindful of it!
    • Has the employee recently complained about safety or the integrity of company products?
    • Has the employee recently exercised a legal right such as filing an OSHA complaint, filing a worker’s compensation claim, or taken FMLA Leave?
    • Are the employee’s pension rights due to vest shortly?
    • What reasons for discharge will be stated if litigation occurs and how will they be phrased?
    • Have the company’s disciplinary procedures been followed?
    • Is the employee’s improper conduct or failure to respond to correct suggestions documented?
    • Can the superior identify specific tasks or responsibilities that were not properly carried out (who, what, when, etc.)?
    • Did the employee have fair advance notice of the standards by which his or her performance would be judged?
    • Are there extenuating circumstances which justify a lesser penalty?
    • Have other employees who have engaged in similar conduct been terminated? (Dig deep, find out!) Employees have longer memories than you do—do not operate in a vacuum—what have other departments done? Remember, under the NLRA, despite your “jobs,” you are all under the same “unit.”
    • How strong is the evidence of the event which triggered the discharge? Was it for drinking on the job—get and keep the bottle! (chain of custody).
    • How strong is the documentation?
    • Has the reviewer looked at the employee’s entire personnel record?
    • Does the employee’s prior disciplinary record support termination?
    • Has the reviewer followed the company’s own contractual or employee handbook procedures for discipline and discharge?
    • Has the employee’s explanation of the “triggering event” been obtained before making the termination decision?
    • Would transferring the employee to a different job or a medical or personal leave of absence alleviate the problem?
    • Should there be a suspension period?
    • Should there be one more Final Warning (substance abusers)?

    Article by Loren K. Allison, attorney at law
    803 S. Calhoun St., Suite 300, Fort Wayne, Indiana 46802
    (260) 407-0040