September 11, 2015

DISCIPLINE

Handling Employee Misconduct

Basic Rules

- Set clear standards and expectations.
- Follow company rules.
- Address employee misconduct promptly.
- Conduct a fair and objective investigation.
- Dont rely on hearsay. Avoid any inference of undue influence by a biased third party.
- Be aware of cultural differences and how they affect others. Recognize that your interpretation of a behavior is not universal. Keep an open mind.
- When you make a decision about how to handle a disciplinary issue, ask yourself these questions:

♦ “Is my decision based on merit or observable, quantifiable reasons?”

♦ “Have I considered anyone else or any other action?”

♦ “Do I like or dislike this employee?”

♦ Are my biases affecting my decision?”

-Use counseling and other management techniques evenhandedly, in a nondiscriminatory manner. Don’t let preconceived ideas cloud your judgment.
-Document your decisions.
-Recognize that you may not be able to solve all discipline problems.

Communicating with the employee

-Discipline in private (praise in public)
-Get to the point.
-Use a non-threatening tone.
-Start with an observable or reported incident or event.
-Link the violation to a specific policy or rule.
-Describe objectively how the behavior falls below what is expected or acceptable.
-Get the employee to talk about the incident.
-Listen actively. Don’t interrupt. Control your emotions.
-Stay on track.
-Take notes.
-Don’t try to diagnose the problem.
-Mete out appropriate counseling and/or discipline.
-Spell out the consequences of inaction.
-Set deadlines and follow up.

Documenting Employee Misconduct

Why it’s important to document

-Documentation can provide evidence that an employee was actually or constructively on notice of an employer’s rules, policies, standards of conduct and expectations.
-Documentation can improve feedback between managers and employees.
-Employees are less likely to challenge personnel decisions wen supporting documentation exists.
-Proper documentation can be the best defense to an employee’s claim of harassment, discrimination or wrongful termination.

Types of documentation

• Personnel Forms / disciplinary documents
• Memos / letters / notes
• Emails / text messages
• Performance appraisals

The importance of being consistent

-Employees who feel they are treated differently are more likely to sue.

-Treat all similarly situated employees as consistently as possible.

-Responses to particular problems should be consistent with responses to prior comparable situations. However, variations in discipline for a particular offense is legally justifiable if there are valid nondiscriminatory reasons.

-Apply policies, practices and procedures consistently to all employees regardless of whether they are in a protected category (e.g., race, religion, national origin, gender, family status, disability, sexual orientation, age, veteran status).

-Don’t discipline employees in protected categories more severely than other employees in comparable situations without a legitimate business reason.

Let the punishment fit the crime

- Tailor the discipline to fit the offense.

- Mete out discipline that is reasonably related to the seriousness of the employee’s offence and record of service.

- Follow company policy but take into account any extenuating circumstances.

Examples of disciplinary actions

-Verbal reprimand or warning (but documented informally)
-Written warning
-Suspension (with or without pay)
-Demotion / reduction-in-grade
-Employee assistance or counseling program
-Transfer to another department or facility
-Performance contract (“last chance”)
-Termination (as last resort or immediate termination)

DISCHARGE

Illegal reasons for firing employees

-Discrimination
-Retaliation
-Refusal to submit to a lie detector test
-Alien status (i.e., proper work papers)
-Violations of public policy, such as: refusing to commit an illegal act,
-Complaining about an employer’s illegal conduct; exercising a legal right (e.g., voting, jury duty, military service); worker’s compensation claim

Conducting the termination meeting

-Organize your thoughts. Prepare your comments ahead of time. Be prepared to present any documents that support your decision.
-Maintain the privacy and dignity of the employee.
-Have someone else in the room as a witness and note-taker.
-The meeting should last no longer than about 10 minutes.
-Tell the employee that he or she is being terminated, the effective date of the termination, and that the decision is final.
-Tell the employee the real reason for the termination in factual terms. Don’t sugarcoat the reasons.
-Avoid making any value judgments about the employee’s character, etc.
-Be respectful. Be empathetic but don’t stray from the central issue.
-Do not change your decision because the employee requests a lawyer or threatens to file a lawsuit. Simply tell the employee that it his or her right, but that it does not change your position.
-Do not discuss the situation of any other employee.
-Avoid terms like “just cause” or “for cause” or any phrase that could be construed as being biased against any protected group.
-Follow company procedure with regard to COBRA, final pay, return of company property, etc.
-Ask the employee to read and review the notes taken, to verify what was said, not to show agreement with the reasons for the termination.
-End the meeting by advising the employee of the manner in which to leave the premises, especially if it is immediate.

Avoiding retaliation claims when firing an employee

-Understand what unlawful retaliation is.

♦ Elements to establish unlawful retaliation are: (1) the employee engaged in a protected activity; (2) the employer took some adverse action againstthe employee; and (3) a causal connection existed between the protected activity and the adverse action.

♦ A protected activity is filing a claim, testifying, assisting or participating in an investigation, proceeding or hearing or opposing an unlawful employment practice prohibited by the statute (including, among other things, making complaints to management, protesting against discrimination in general, or expressing support of co-workers who have filed charges of discrimination or harassment.

-Implement a policy prohibiting unlawful retaliation.
-Provide training to managers on what types of behavior constitute retaliation and how to respond when a complaint is brought to their attention.
-Investigate all claims / complaints of unfair treatment.