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This article is excerpted from Chapter 1 of 101 Sample Write-Ups for Documenting Employee Performance Problems: A Guide to Progressive Discipline & Termination, Third Edition (Amacom/SHRM, 2017), written by Paul Falcone. This is the second in a three-part series on progressive discipline and its legal considerations.
The traditional paradigm is used to prove, via documentation, that you made a good-faith effort to lead the employee down the right path. Your affirmative efforts to improve your employee's performance must have been willfully rebuffed despite repeated warnings so that you, as a reasonable employer, were left with no choice other than termination. Keep in mind that you may be required to demonstrate that the discipline was meted out in a fair manner that was consistent with your own policies so that any worker could reasonably expect to be terminated under similar circumstances.
Repeated Violations Trigger Disciplinary Progression
But how exactly does
progressive discipline progress? 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 absence). In essence, there must be a link or nexus between events in order to move to the next stage. Without an interrelationship between events, you will end up with a series of independent verbal warnings rather than a progression from a verbal to a written to a final written warning.
For example, an employee who violates your organization's attendance policy and one week later fails to meet a deadline may receive two separate verbal warnings for independent and unrelated transgressions. On the other hand, an employee who violates your company's attendance policy and then develops a tardiness problem will indeed progress through the discipline system because both transgressions are intrinsically connected: Unauthorized absence and tardiness both have a negative effect on the work flow of your office.
It is by no means uncommon to have an employee on separate paths of discipline. A shipping clerk who is already on final written warning for insubordination shouldn't necessarily be terminated if a tardiness problem begins. Tardiness, an event unrelated to insubordination, would not typically be used as the proverbial "straw that breaks the camel's back" to justify termination. That's because there is no nexus or interrelationship between the events: Tardiness interferes with work flow, whereas insubordination relates to individual behavior and conduct—a separate business issue altogether.
On the other hand, because insubordination is a conduct infraction, any other behavior or conduct infractions during the active period of the write-up may indeed result in dismissal. For example, if this shipping clerk on final written warning for insubordination suddenly engages in antagonistic behavior toward his coworkers, insults a customer, or refuses to follow a supervisor's instructions, then a discharge determination could be warranted (barring any significant mitigating circumstances, of course).
With all this emphasis on progressive discipline, whatever happened to your right to fire someone on the spot? Well, it's still there: You can fire anyone at any time. However, you may have difficulty defending your actions in a wrongful termination claim. If you've denied an employee due process, the technical merits of your arguments may be largely ignored.
On the other hand, you don't 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, theft, embezzlement, time card fraud, or drug use on company premises), you've probably got a clear shot at a quick and defensible termination (known as a
To be on the safe side, though, speak with a labor attorney to fully explore the ramifications of such a dismissal. It's always worth getting a professional legal opinion to ensure that you haven't overlooked anything. If you need to buy yourself some extra time, you can always place the worker on investigatory leave with pay pending further review and a final decision.
Employment at Will
Of course, when it comes to summarily discharging employees, that will also be influenced by the employment status of your workers. If they are hired at will, you will have more leeway in determining whether to retain or terminate.
Employment-at-will status is employment that does not provide an employee with job security, since the person can be fired on a moment's notice with or without cause. The employment-at-will relationship is created when an employee agrees to work for an employer for an unspecified period of time. It holds that an employer can terminate a worker at any time for any legitimate reason or for no reason at all. Likewise, the employee may leave the organization at any time, with or without notice.1
On the other hand, the rule is littered with statutory exceptions. That means that you cannot terminate workers if the discharge infringes upon a protected right or goes against public policy. Specifically, there are five exceptions to the employment-at-will doctrine:
Because of these limitations, you must attempt to protect the at-will employment status at all costs.Employment-at-will language is typically found at only three critical junctures in the employer-employee relationship: (1) the employment application, (2) the offer letter, and (3) the employee handbook (please see "Establishing an Employment-at-Will Policy" below). The at-will language certainly belongs there, but numerous court cases have found that if a long-term employee hasn't seen an application or offer letter since the date of hire ten or twenty years ago, then she may not necessarily be subject to an at-will employment relationship. Courts have held that it has simply been too long since that message was communicated to the employee. Therefore, communicating your company's employment-at-will policy during the disciplinary process helps protect that policy.
Does employment at will fly in the face of progressive discipline and due process? After all, if you have to take employees through a series of disciplinary actions before you can terminate
for cause, does that naturally erode your ability to terminate at whim? Well, the two concepts are not mutually exclusive; rather, they are among the complicated, and oftentimes contradictory, issues that make up employment law today. By making the at-will nature of employment known
expressly (i.e., in writing), you should be better able to successfully argue that an employee did not have a reasonable expectation that discharge could be only for cause.
Establishing an Employment-at-Will Policy
If you are in an employment-at-will state, you can establish an employment-at-will policy in your employee handbook (or, if you don't have an employee handbook, in a separate memo included in the employee's new hire packet) by expressly stating: Violation of company policies and rules may warrant disciplinary action. Forms of discipline that the company may elect to use include verbal corrections, written warnings, final written warnings, and/or suspensions. The system is not formal, and the company may, at its sole and absolute discretion, deviate from any order of progressive disciplinary actions and utilize whatever form of discipline is deemed appropriate under the circumstances, up to and including immediate termination of employment. The company's discipline policy in no way limits or alters the at-will employment relationship.
The Employment-at-Will Affirmative Defense
Remember that your defense attorney will initially attempt to gain a summary judgment—an immediate dismissal—of a wrongful termination claim by employing the at-will defense at the hearing stage. If your defense attorney successfully argues that the ex-worker was employed at-will, understood that she was at-will, and had not had the at-will relationship abrogated during her tenure with your company by any manager's actions or verbal assurances, then the case could simply be dismissed during the hearing (i.e., before the trial stage). The reasons for the termination need not be considered.
However, discrimination is an exception to employment at will. If a plaintiff attorney can show that you discriminated against the employee, retaliated against her for filing a workers' compensation claim, or verbally implied (in front of witnesses) that people "don't get fired around here unless they deserve it," then the employment-at-will affirmative defense may not be sustained.
As a result, if a summary dismissal is not initially granted at the hearing stage by the court or arbitrator, then you will have to justify your decision to terminate at trial by proving that you had just cause. And the way that most employers successfully prove that they had just cause is by presenting the court or the arbitrator with documentation in the form of progressive discipline.
Although much is said about the erosion of the employment-at-will doctrine, "Were you hired at-will?" is still one of the first questions a plaintiff's attorney will ask your ex-employee when deciding whether to take on the case. The attorney knows that if the employee was hired at will, chances of obtaining damages from the company—including damages for wrongful discharge and breach of contract—may be dramatically reduced (assuming the at-will defense is affirmed by the court).
2This statement is borne out by employment law case history over the past eighty years. At-will employment came about in the early 1930s. Since then, employees who were dissatisfied with the reasons given for their dismissal have tried to sue their employers, claiming that the companies had to have good cause to fire them. And for many years, courts typically supported employers because of the at-will employment relationship.
That all ended in the early 1980s when a California court held that although the law, as it was written, created a presumption of an at-will employment relationship, that presumption could be challenged by evidence that both parties entered into an employment contract that allowed only termination for cause. Specifically, in the 1980
Tameny vs. Atlantic Richfield Co. case, then California Chief Justice Rose Bird ruled that a long-term employee couldn't be fired under the employment-at-will affirmative defense for refusing to engage in unlawful activities on the company's behalf (in this case, price fixing). Once the employment-at-will veil was pierced, the public policy exception was born, and tort law became a prominent part of the legal landscape.
What was also significant in the California decision was the court's further ruling that the contract could be implied (rather than written or oral) based on a company's past practices. In addition, if language in employee handbooks seemed to suggest that employees could be fired only after some form of due process was provided, then the company was barred from exercising its right to terminate at will. As a result, reaffirming your at-will employment relationship during the disciplinary process gives you the chance to strengthen your defense against a plaintiff's attorney who alleges that an implied promise existed requiring for cause justification.
Implied contract legal theory presents a serious threat to your right to fire an employee on a moment's notice with or without cause. If you inadvertently transform the employment-at-will relationship into an
employment with termination for cause only relationship, you will unnecessarily expose your organization to increased liability by eliminating your company's first line of defense: the summary judgment.
Without a crystal ball, you can't know in advance what kind of a spin a plaintiff's attorney will place on a case. Therefore, you also can't know if your company will be successful in asserting the employment-at-will affirmative defense (and thereby winning a summary judgment at the hearing stage). Therefore, you should always assume that you'll have to do both: (1) Protect the employment at will relationship via your company documentation, but (2) always be prepared to defend your decision to terminate on the merits of the employee's performance (i.e., by showing cause in the form of progressive discipline). In other words, regardless of the employment-at-will relationship, always be prepared to demonstrate just cause to justify a dismissal via documentation. That's fair to your employees and healthy for your company.
Relying on employment at will as a sole defense in terminating workers provides far too many employers with a false sense of security. To avoid falling into that trap, you should protect the employment-at-will relationship with your workers by documenting its existence whenever possible. However, you shouldn't rely on it to make wrongful termination charges magically disappear.
1 Most states, but not all, allow at-will employment relationships. For example, the state of Montana has enacted a statute that completely abrogates employment at will. As a result, Montana employers are prohibited from discharging employees without good cause.
2 In other words, for those employees whose rights are not protected by a labor agreement, employment contract, or legal statute (i.e., regarding age, race, or gender), their protection against wrongful discharge is minimal.
This is the second in a three-part series on progressive discipline and its legal considerations. The first installment was Part 1: The Elements of Due Process. The next installment will be Part 3: The Legal Implications of Probationary Periods.
Please visit the SHRMStore to order a copy of
101 Sample Write-Ups for Documenting Employee Performance Problems: A Guide to Progressive Discipline & Termination, Third Edition, by Paul Falcone.
Paul Falcone (www.PaulFalconeHR.com) is an HR trainer, speaker and executive coach and has held senior HR roles with Paramount Pictures, Nickelodeon and Time Warner. His 2016 book, 75 Ways for Managers to Hire, Develop, and Keep Great Employees (Amacom), focuses on aligning front-line leadership teams and on key employee retention. A longtime contributor to HR Magazine, he's also the author of a number of SHRM best-sellers, including 96 Great Interview Questions to Ask Before You Hire, 101 Tough Conversations to Have with Employees
and 2600 Phrases for Effective Performance Reviews.
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