Loren K. Allison, attorney at law 803 S. Calhoun St., Suite 300, Fort Wayne, Indiana 46802 (260) 407-0040No business owner relishes the termination of an employee. In this litigious society, you end up in an unemployment compensation hearing or, at a minimum, with an Equal Employment Oppurtunity Commision (EEOC) charge or a lawsuit. Did you do it right? Do you have enough documentation to protect yourself? This and the next two issues of Business People can save you unproductive time and money while dealing with a disgruntled ex-employee.

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

    Inconsistency in the application of discipline is a serious problem and one that costs employers dollars (sometimes lots of them) if challenged and proven in arbitration by the EEOC, NLRB or a judge/jury. It is imperative that discipline follow reasonably close in time to the conduct for which the employee is being disciplined. Any inexplicable delay in discipline is considered to be most unfair and could be used to set aside the discipline.

    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 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, it is helpful in defending a lawsuit in that it assists a supervisor or manager in refreshing his/her recollection of the facts and circumstances surrounding a particular employment action.
    I recommend the following:

    1. Date all disciplinary documents. Remember, the preparer of documents must sign them.
    2. The employee’s deficiencies should be thoroughly set forth in the written documentation.
    3. The employee should be told what the next step will be if the needed improvement is not shown (i.e. discharge, suspension, etc.).
    4. The document should reflect the fact that the employee is being told that it will go in his/her file.
    5. If possible, the employee must sign the document.
    The importance of these items cannot be overstated. It is quite common for an employee or former employee to claim either that he/she was never disciplined or that he or she was never told that any document would be placed in the employee’s personnel file. Obviously, such claims are entitled to little consideration when the employee’s signature appears clearly on the disciplinary document.

    Notice of Offenses
    You should have a list of offenses generated from the supervisors who have an ownership interest. Distribute the lists along with the employee handbooks and post them 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 20 offenses. A greater number creates the danger of being trapped by the “jailhouse lawyer” employee who will argue that he did not commit the specific offense with which he 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
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