By Dana Stripling, JD, Garlo Ward, P.C.
www.garloward.com
Posted July 7, 2004
If they could choose one supervisory function to avoid, many managers and supervisors alike would choose disciplining employees. In today’s litigious society, employees don’t think twice about seeking solace in court for perceived inequities. Most employment lawsuits are filed by employees who believe they were disciplined unfairly, and their attorneys seek out a cause of action to explain the perceived inequity.
Discipline Has Its Day In Court
Here’s what happened to two employers whose discipline practices went astray.
Inconsistent application: An African-American worker was the only employee, over approximately two years, to be suspended and ultimately terminated under her employer’s progressive discipline policy. She headed into court, accusing her employer of race discrimination. Her evidence: Sixteen non-black employees, who should have been suspended or terminated for violating similar company rules, faced little more than a written warning, if that. The court found that the employee presented enough evidence to allow the case to go to trial.
Heavy-handed discipline: An employee and her supervisor butted heads constantly, allegedly because the supervisor disliked working with women. So when the employee entered a full day on her time card when in fact she hadn’t worked a full day, her supervisor suspended the employee without pay for 5 days. In her defense, the employee explained that she completed her time card the day before she got a flat tire and missed the afternoon session of an all-day seminar. Despite her appeal to upper management, backed by complaints from other female employees, the employee’s suspension stood. This was the first and only infraction on her personnel record. The employee sued, claiming sex discrimination, sex harassment and retaliation. The court agreed on her sex discrimination charge.
When and How To Reprimand
When it comes to discipline, one size does not fit all. That’s because you can’t expect to hand out the same discipline to an employee who shows up late as you would to one who is caught mistreating a patient or client, and still expect employees to remain loyal to your facility.
Supervisors and managers must distinguish between performance-based problems and behavior-based problems. With performance-based problems, the goal is not to punish employees for violating company policy, but rather to help them remedy a problem, which, in turn, will improve their performance and ultimately get the job done. Therefore, when dealing with an employee in need of performance-based discipline:
- Notify the employee of the problem;
- Provide corrective counseling, during which you provide the employee with the assistance needed to fix the problem;
- Grant the employee an opportunity to correct the problem; and
- Document your efforts.
Note that an employer does not have to wait for a regular performance review to impose such discipline. In fact, doing so only allows the problem to grow and makes it that much more difficult to correct.
By contrast, in response to behavior-based problems, an employer should thoroughly investigate any incidents, while keeping it as confidential as possible. The actual discipline dispensed depends on the severity of the problem and may warrant anything from a reprimand to a suspension or even discharge. Whatever discipline you deem appropriate, just make certain that it is consistent with discipline that was issued for similar offenses in the past to avoid claims of discrimination.
Policy Pitfalls
One of the biggest mistakes employers make is failing to follow their own policies. Before taking any disciplinary action, review company policies and practices, and incorporate them into any written disciplinary action. Following are some suggestions for drafting and implementing a discipline policy that provides guidance without backfiring:
Keep flexibility. It is imperative that companies maintain utmost flexibility when disciplining or terminating employees. Always reserve the right to choose the type of discipline to be imposed, “up to and including termination,” without being required to first use less severe discipline.
All too common is the employer whose progressive discipline policy fails to provide the employer’s right to skip steps (e.g., “the first infraction will result in a verbal warning; the second infraction will result in a written warning,” etc.). The employer should always have the right to impose any disciplinary action it deems appropriate. Usually language can be inserted to preserve that right, such as: “The use of this discipline system is a guideline only, is solely optional on the part of the Center and does not limit the Center’s right to take whatever action it deems appropriate in any particular situation, including termination of any employee without notice, cause, or warning.”
Keep consistency. Even with a flexible policy, you need to make sure that it is applied consistently throughout the company. In other words, all employees who engage in similar conduct should be treated the same, unless there are legitimate business reasons for different disciplinary actions.
Keep to your policy. If the company handbook details a system of progressive discipline, try to keep to it. Consistent application of these written guidelines adopted by the company will help prevent claims of discrimination when discipline is applied inconsistently.
Keep it real. All too often, employee handbooks are adopted forms or written by a third party without knowledge of a company’s actual practices. For example, does your handbook reference a Human Resources department that doesn’t exist or a grievance procedure that is never used? Make sure your written policies make sense given the size and nature of your operations and that supervisors will be willing and able to follow them in all situations. If not, then you need to rethink and revise your policies to meet your company’s particular needs.
Keep it simple. The wisest approach is to define your progressive discipline policy in the broadest terms possible, rather than setting out detailed discipline limited to different types of infractions. Include a non-exhaustive list of the types of infractions that may result in discipline or termination, state that the company will “try, when appropriate” to provide employees with the opportunity to correct deficiencies, and reiterate that the policy is not intended to alter the employee’s at-will status.
For example, your progressive discipline policy should be stated in terms of “guidelines only” and might contain an open-ended list of employee expectations and conduct; otherwise, a policy should not detail a specific discipline structure or any consequences of behavior.
Warning the Wayward Employee
Whatever you do, don’t act too hastily or leap to conclusions. Instead, schedule a meeting and clear the air with the troublesome worker.
Check your own emotions. Don’t let personality conflicts dictate how you choose to discipline an employee. Be sure your temper subsides and that inadvertent biases do not lead to hasty employment actions.
Check your notes. Document any disciplinary meeting or counseling, whether in your calendar or notes or more formally in the employee’s personnel file. Note the date and reason for the meeting, who is present, what was discussed, and what was agreed upon. Although having an employee sign the documentation is not absolutely necessary, you should always asks them to sign that they received the counseling and/or note yourself on the document if the employee refuses to sign. Signing the memorandum does not denote the employee’s agreement with its contents, but it does serve as confirmation that the employee was counseled.
Check any condescending tone. Stick to addressing the issue at hand in a non-condescending manner. And don’t engage in arguments over the underlying facts. Simply reiterate the effect of the behavior on operations, other employees or patients/clients, and focus on what can be done to remedy that.
Check the euphemisms. When dealing with behavior problems, focus on the conduct, its effect and a resolution. Supervisors too frequently want to soften the criticism with a lot of positive reinforcement. Be direct and focus on the need for a remedy within a given deadline. This doesn’t mean that a supervisor cannot begin the counseling by noting what the employee is doing well. The focus is always effective corrective counseling.
Check for prior infractions. Always put performance or behavior problems into the overall context of the employee’s work history. For example, an employee is always late for his shift and, most recently, failed to finish his 24-hour report. Upon his next tardy, you schedule a meeting, during which you discuss both problems. So when he forgets to complete reports several days later, it’s within reason to hand out discipline for multiple violations.
Disciplining Step-By-Step
More and more companies are adopting progressive disciplinary policies, which typically increase penalties from verbal warnings to written warnings to an adverse employment action, such as suspension or discharge. Since managers and supervisors are the people doling out such discipline, it’s crucial that employers provide them with necessary training. Following are some key progressive disciplinary policy guidelines:
Document, document, document. Whether formally or in note form, document every verbal or written disciplinary meeting and place the notes in the appropriate personnel files. Retain all prior disciplinary notes, as an employee’s overall performance history is important to the progressive disciplinary process.
Refer to prior performance issues. Discipline should be linked to employees’ prior warnings and performance reviews.
Don’t shy away from employee feedback. Invite the employee’s response to your concerns and be sure to document what they say.
Identify expectations. Explicitly state the company’s measurable expectations: “We expect that you will…” Then provide the employees with the opportunity, equipment or training necessary to reach the goal. The responsibility falls on the employee to salvage his/her job.
Identify deadlines. Provide a reasonable time period by which the employee must correct the problem. Generally, avoid giving a warning at 9 a.m. and terminating the employee at 5 p.m. If it becomes apparent that the employee cannot remedy the problems within the proposed time frame or other infractions occur, nothing prohibits the employer from terminating or taking other adverse action against an employee prior to the expiration of the deadline.
Identify consequences. Warn employees if they will be subject to a particular adverse action if the problem is not remedied. If this is a “last chance” for the employee to correct a problem, then tell them so and let them know that their failure will result in their termination.
Note: Employees have the legal right to request representation during a meeting in which discipline may result. If discipline has already been decided upon, this right is not required.
All information in this article is informational only and is not legal advice. Should you have any questions or a situation requiring advice, please contact an attorney.
Copyright 2004 by Garlo Ward, P.C., all rights reserved.
Lakeway, Texas 78734 USA
Telephone: 512-302-1103
Facsimilie: 512-302-3256
Email: Info@Garloward.com