Progress Employee Discipline

Although employees can be fired at will, following routine steps to provide them with due process can make your terminations defensible.

Constructing progressive disciplinary actions that will withstand scrutiny by arbitrators or juries involves art as much as science. But one thing is certain: Without the proper documentation, you could be forced to reinstate unionized employees with back pay or you could owe significant damages in a lawsuit for wrongful-termination.

The objective of any disciplinary system is to create and maintain a productive, responsive workforce. A progressive discipline system essentially begins with the recruitment process and continues through orientation, training, performance evaluations and day-to-day supervision.

Disciplinary actions, when they occur, should focus on rehabilitating employees by deterring them from repeating past problems. However, once an employee repeatedly demonstrates a lack of concern for a job or apparent inability to perform at minimum standards, written discipline must be clear and decisive.

But how do you "add teeth" to a typical performance memo and enforce it in a way that will withstand legal scrutiny? After all, most juries include more employees than employers. And employees' refusal to accept responsibility for their actions seems to have become a permanent part of industrial democracy. Where does that leave human resource professionals who reasonably expect employees to put in a good day's work for a good day's pay?

Following are some of the critical elements of workplace due process and descriptions of how they apply to actual workplace situations.

What Is Due Process?

Discharged employees who are successful at winning wrongful termination claims typically can prove that they were denied due process - what we call progressive discipline. Often, the underlying behavior that resulted in disciplinary action plays a secondary role in the arbitrator's mind. As a practical matter, the employer has to show that affirmative steps were taken to rehabilitate the employee.

If the "step formula" outlined in a progressive discipline policy is violated, arbitrators will conclude that the abuse of managerial discretion warrants substituting their judgment for the employer's in the handling of a specific worker. Frequently, that results in mitigation of a discharge to a lesser penalty.

If you've ever scratched your head about losing a case to an employee who flagrantly disregarded work responsibilities, it is probably because due process was denied. But what are the elements of due process?

Knowledge of expectations and consequences. Employees have the right to know what is expected of them and what the consequences of their actions will be. If a write-up merely documents a performance problem without pointing to the consequences of failure to improve, the write-up will lack the "teeth" necessary to meet due process guidelines.

Consistency. Workers have the right to consistent and predictable employer responses when a rule is violated. In other words, problems cannot be corrected on an ad hoc basis without the employer being perceived as arbitrary, unreasonable and, perhaps, discriminatory.

Failure to follow through on threatened consequences damages the credibility of the disciplinary program among employees, and sets an unintended precedent. If Employee A was forgiven for making certain production mistakes on the assembly line, Employees B through Z will have to be forgiven for committing the same errors.

Discipline appropriate for the offense. Occasional poor performance is certainly actionable, but probably not cause for termination. An employee's performance track record and prior disciplinary record certainly must be taken into account.

An opportunity to respond. Administering discipline without allowing an employee to respond is begging for trouble. Unfortunately, of all the elements of due process that should be incorporated into the progressive disciplinary system, this self-defense principle is the one most often lacking.

Reasonable time limit. Finally, progressive discipline must allow employees a reasonable period of time to improve their performance.

The Step System

Because the purpose of progressive discipline systems is to rehabilitate, employers must try to help employees solve their problems. How do employers document these good-faith efforts?

* Step 1. Clearly state in writing the nature of the problem and how the employee's performance or conduct damaged the company.

* Step 2. Provide a clear and un-equivocal warning that failure to improve will result in discipline, up to and including termination.

* Step 3. Prove through progressive disciplinary actions that the employee's poor performance continued despite repeated warnings.

* Step 4. Show that discipline was doled out in a fair and consistent manner, so that any worker will reasonably expect to be terminated under similar circumstances.

The typical progressive discipline formula begins with a verbal warning and progresses to a written and then a final written warning prior to termination. Usually the impetus that moves the process from one stage to the next is a repeated violation of the same rule or type of rule (for example, repeated tardiness or unexcused absences).

Employers with a properly drafted policy may "bundle" offenses. Bundling allows offenses that are relatively unrelated to be lumped together for purposes of documenting poor performance. This accumulation factor often plays an important role in justifying terminations because it documents that workers are not rehabilitating themselves or taking prior warnings seriously.

Provide Warnings

Employers must provide warnings about poor performance during both the probationary and nonprobationary periods.

Probationary employees. Workers in their "introductory" periods typically require very little progressive discipline. Still, the introductory period should never be considered a mere "trial run" when employers can separate them at whim. Especially in employee - friendly states, it is important to install progressive disciplinary steps with very short windows even during initial probationary periods.

Poor performers. Non-probationary employees with performance problems are almost always subject to progressive discipline steps. Even with the most inept performer, an arbitrator will argue that the employer is at fault for not interviewing more carefully or checking references more thoroughly. Therefore, don't consider denying due process to an underachiever.

The length of the disciplinary "time windows" depends on the nature of the offense: To closely monitor a poor performer's work, use a short window such as 30 days. Salespeople who aren't cutting the mustard typically get 60-day windows. To keep employees "clean" for the longest period of time (for example, with tardiness and absenteeism problems), use a 90-day window.

Unfortunately, these windows usually cannot be much longer than 90 days because courts or arbitrators may rule that the "stay clean" period was onerous. A warning that "another unexcused absence in the next year will result in dismissal" may be considered too exacting.

Summary Discharges

With all the emphasis on progressive discipline, whatever happened to the employers' right to fire someone on the spot? In fact, employers may still fire anyone at any time, but they may have difficulty defending that action in a wrongful termination claim. If they have denied employees due process, the technical merits of their arguments will be largely ignored.

But employers do not have to offer progressive discipline to someone who breaks the law. Progressive discipline is an employee benefit. If an employee engages in illegal activity or other egregious conduct (such as gross insubordination, gross negligence or drug use on company premises), employers probably have a clear shot at a quick and defensible termination.

To be on the safe side, though, speak with a labor attorney to fully explore the ramifications of such a dismissal. To buy some extra time, an employer can place a worker on "investigatory" suspension pending further review and final decision.

Keep in mind that discipline shouldn't be administered in a vacuum. It must logically and sequentially follow up on previous disciplinary actions documented in the employee's file. Before completing a write-up, review the personnel file to see if offenses can be "bundled" to move an employee further along the progressive discipline process. Such are the makings of a successful defense against a wrongful termination claim.