August 06, 2013

1. Centralize Your Discipline System

The first characteristic of an effective discharge procedure is centralization. In a larger company, all discipline, including discharges, at some juncture is channeled through the Human Resources Department. In a small plant, discipline is typically channeled through the personnel office. This centralization ensures a certain amount of uniformity throughout a facility or, in some cases, throughout an entire company. Certainly, if discipline is to be effective, it must be centralized. If every foreman administers his own brand of justice, it will be difficult to achieve effective discipline.

2. Review Every Recommended Disciplinary Action Before Implementation

A related characteristic which is often observable in facilities where an effective discharge procedure exists is an independent review function. At these facilities, no one supervisor or manager ever discharges an employee without review of that decision by at least one other person. Either a second line supervisor or a staff person, such as a personnel manager, reviews any disciplinary action to be taken. Not only does this ensure uniformity, it also ensures a certain amount of fairness and tends to minimize arbitrariness which can creep into discharge procedures.

Actually, this may be the single most important step that an employer can take to minimize the risks which may follow after an employee is terminated. At this stage, the independent reviewer can check the many questions which ought to be considered before the termination is finalized. For instance, he can look at: (1) whether there are any discrimination problems; (2) whether any job security promises have been made; (3) whether there has been compliance with the personnel policies or employee handbook; and (4) whether there are any at-will wrongful discharge issues, such as a violation of public policy, which are likely to arise if the decision to terminate is made.

3. Provide Industrial Due Process

An effective discharge procedure generally has some mechanism for providing due process built into it. Due process means giving an employee the specifics of the charges against him or her, and providing that employee with an opportunity to respond to those charges.  Although there is no law requiring due process in the private sector at the present time, courts and reviewing agencies tend to look less favorably on a discipline procedure which did not involve some form of due process. In addition, the jury’s view of the employer at the time of trial will be affected by the degree of humanity or compassion shown to the employee when he was told of his termination.

4. Give Sufficient Notice before Disciplining

Due process also generally involves some kind of notice. Employees should not be discharged without knowing in advance that their conduct could result in discharge. For example, an employer may give notice by publishing a list of reasonable work rules which detail particular actions or omissions which might lead to serious disciplinary action, possibly including discharge. However, it is not possible for an employer to publish every incident which may result in discharge; in this day and age, the number of actions in which employees engage which could merit their discharge is so long that it is virtually impossible to list every prohibition. List as many as you can, reserve the company’s right to discharge for conduct not listed and then apply common sense.

5. Use Discipline Which Is Progressive In Severity When Possible

An effective discharge procedure is generally based upon progressive discipline. A progressive discipline system is based upon a presumption that employees, by nature, do not wish to engage in misconduct and if allowed a chance will correct their behavior. It recognizes that discharge is generally the last resort.

Progressive discipline systems generally involve a three or four step approach before an employee is discharged. For example, an employee may initially be given a verbal warning for an offense, followed by a written warning for the same offense, followed by a short suspension of anywhere from one to five days for a third offense. Finally, a fourth offense results in a discharge. Progressive discipline systems vary from employer to employer. If faithfully followed, a progressive discipline system can reduce the risk of wrongful discharge litigation because, by encouraging employees to improve their performance, the instances of discharge may be lessened.

6. Do Not Discipline Without Adequate Documentation

An effective discharge procedure is always based upon documentation. Documentation should take three forms. First, there should be sufficient documentation to indicate that the employee had adequate warning. This may consist of written records of verbal warnings or written warnings, or perhaps even an earlier letter to the employee indicating that “further conduct of this nature may result in more serious disciplinary action, up to and including discharge.” Second, evaluations given to the employee should be consistent with the disciplinary documentation in the personnel file. It is extremely difficult to convince a jury that an older employee who has been terminated for poor performance should be judged upon the basis of a termination letter detailing that poor performance, rather than on five or six evaluations in the personnel file, all of which rated the employee as better than average. Third, documentation should include written statements from participating witnesses, supervisors and managers. We all have short memories and tend to forget the details of even the most serious of incidents. One way to avoid this is to require statements from all witnesses to an incident or all participants in disciplinary action.

7. Be Fair When You Discipline

Discharges should be fair. It goes without saying that the degree of the penalty should be in keeping with the seriousness of the offense. In order for a disciplinary system to be effective, it must be perceived by employees as fair. Companies can achieve this fairness by ensuring that the punishment is consistent with the nature of the offense. Other factors which should always be taken into consideration to ensure fairness are: (1) the need for corrective action; (2) the employee’s past record; (3) the employee’s length of service; (4) whether the employee knew that the conduct in which he engaged was conduct for which he could be disciplined; and (5) whether management in any way contributed to the misconduct in which the employee engaged and thus, was partly at fault.

In each and every case, each one of these factors should be considered before discharge is implemented.

8. Investigate Before You Discipline

No disciplinary action should be taken until a complete and thorough investigation has been completed. If immediate action is called for, an employee should be sent home and told to report to the Human Resources Department the next day rather than discharged “on the spot.” An investigation should not be conducted merely by asking an employee if he did or did not do that of which he is accused. The employee should be provided with an opportunity to explain any mitigating circumstances.

9. Discipline In A Consistent Fashion

An effective discharge procedure should be consistent. Although it is necessary to judge each situation on a case-by-case basis, arbitrariness in the administration of discipline can make an entire disciplinary system ineffective. In order for a system to be consistent, there has to be communication among the supervisors and managers who do the disciplining, as well as in-house training.

10. Maintain Flexibility When Administering Discipline

The last characteristic of an effective discipline and discharge procedure is flexibility. Each and every case must be judged on its own merits. Although employers must maintain consistency, there are some situations where the results would be absurd if there is not some flexibility built into the discipline system. For example, a company has a well-publicized written rule that an employee who punches another employee’s time card or has his own time card punched by someone else is subject to immediate discharge. One day, a manager discovers that each day of the week, an employee in department “X” takes his turn and punches in all other employees in that department. This procedure has evolved over a number of years, and no supervisor has ever done anything about it. If the company’s discharge procedure was not flexible, not only would the employee in department “X” who punched in his fellow employees be discharged, but every employee in department “X” would be! Obviously, since no fraud was intended and the action was taken with the supervisors’ tacit approval, such a result would be contrary to what the company hoped to achieve by promulgating its “time card” rule in the first place and would yield an absurd result. By being flexible (while still basically consistent), harsh and absurd results are avoided.

Author:

Anne Ladov Eisemann, Esq.
Jackson Lewis, LLP

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