Labor & Employment Developments Blog

Most companies that have employment policies use some form of progressive discipline.  That is fine if it’s done the right way.  Unfortunately, in my practice I run across poorly executed and applied progressive discipline policies with alarming regularity.  Here are some thoughts on this subject that are all based on hard lessons learned by employers that I have represented.

The policy must give the employer flexibility – to be effective and workable, a progressive discipline policy must have two related components: 1) it must maintain the at-will status of employees; and 2) it must give the employer flexibility to address any situation in the manner the employer chooses.  As to the first point, the policy should not call for strict step discipline, i.e. it should not require the employee to receive a certain number of warnings or other steps before termination.  This is best accomplished by simply stating that employment is at-will and the employer has the discretion to apply any of the possible steps up to termination in its discretion.  This also takes care of the second point by allowing the employer the flexibility to choose how to address any situation.  Think of a progressive discipline policy as a menu of options for the employer rather than a process for the employee.  On a related note, if you must list specific infractions, e.g. insubordination, tardiness, etc., be sure to mention that the list is non-exclusive and an example of the types of infractions that may result in discipline. 

The policy must be the last word on discipline – employers should avoid multiple policies that address discipline and discharge, especially if they contradict one another.  This seems obvious but it is an issue I have seen again and again in practice.  Consider an employer with multiple locations.  Perhaps an overzealous manager decides to beef up the attendance policy for his location and includes a point system that ends in termination.  Another example could be a distribution center that has unique security procedures and creates some of its own discipline guidelines to address recurring security breaches.  In either case, employees may be subject to inconsistent policies and will be in a position to use the inconsistency against the employer in litigation. 

The policy must be applied logically and consistently – this is probably where I have seen the most mistakes by employers.  Consider a hypothetical employer with a four-step policy that allows use of any step for any infraction.  It might look like this: Step 1 – Written Warning; Step 2 – 2^nd Written Warning; Step 3 – Suspension; and Step 4 – Termination.  Now consider this record of discipline in chronological order:

Technically, there is nothing wrong with this record.  It adheres to my earlier suggestion that the employer can use the progressive discipline policy like a menu and choose what punishment to apply in each situation.  However, it is worth bearing in mind that if there is ever litigation, the choices will be examined under a microscope and it would be best if they made sense.  Otherwise, a judge or jury will be asked to conclude that there was another motive behind the decisions.  In my hypothetical case I have captured the most common mistake I see in practice, i.e. waiting too long to terminate a problem employee.  The employer passed up two obvious opportunities to terminate – for the auto accident or No Call/No Show and elected to terminate the employee for the relatively minor infraction of tardiness.  I am aware that in the real world managers’ frustrations build over time and the last straw event may be something relatively minor.  However, from a litigation standpoint, an earlier termination would be easier to defend and would avoid hard questions for managers like why an employee is not terminated for fighting or skipping work but is terminated for being late.  Of course, these issues can be addressed to some degree by the way in which the termination document is worded, but the point is that managers should be trained to look at the big picture before making employment decisions. 

Finally, it should go without saying that progressive discipline needs to be applied consistently.  In my example, if another similarly situated employee has an at-fault auto accident and is immediately terminated, the manager needs to have an explanation for the inconsistent treatment.  If there is not a good explanation, the employer could be exposed to claims of discrimination if the second employee is within a protected class and the first was not.

This morning I did an internet search for “progressive discipline” that returned over 750,000 hits.  Obviously it is a significant issue and worth some of your attention if you have not reviewed your policies, training and procedures recently.