One and Done: When to Skip Progressive Discipline

Allen Smith, J.D. By Allen Smith, J.D. February 15, 2019
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One and Done: When to Skip Progressive Discipline

​Many companies practice progressive discipline to correct bad behavior by employees: A verbal warning, written warning and then a final written warning are the usual steps. Using progressive discipline can help employers show they treat employees fairly, and it can help them defeat discrimination and retaliation claims.

But there are cases when it is better for an employee to be fired on the spot. Here's how to determine if you should—and when to—skip progressive discipline and go straight to termination.

A business may risk liability if a worker who has engaged in severe misconduct remains employed—and hurts someone or damages property, said Gerald Hathaway, an attorney with Drinker Biddle in New York City. Even unionized employers with collective bargaining agreements that require progressive discipline can fire employees quickly.

Reasons for Fast Firing

Hathaway said that many collective bargaining agreements list reasons for immediate termination. These reasons are useful guidelines for all employers that use progressive discipline:

  • Fighting.
  • Assault.
  • Theft from anyone, regardless of the amount involved.
  • Serious insubordination, such as refusing a direct work order.
  • Dishonesty.
  • Willful destruction of property.
  • Being under the influence of drugs or alcohol.
  • Falsification of records.

What are the liability risks? Suppose an employer knew an employee had driven on the job while under the influence of alcohol but still allowed the person behind the wheel at work while it slogged through the steps of progressive discipline. If the worker drove while drunk again, the employer could be responsible for a subsequent accident in which others were injured or killed.

When safety is involved, it makes sense to skip straight to termination, said Valerie Ferrier, an attorney with FordHarrison in New York City. That would include when employees are a threat to themselves or others, such as by stalking. She added that immediate termination may be called for when the employee has engaged in criminal activity.

An employee may be suspended or terminated for an arrest so long as the conduct for which the employee was arrested is relevant to his or her job and makes the individual unfit for the position, such as when a school bus driver is arrested for driving while intoxicated. But if a bus driver was arrested for disorderly conduct, the charge would not likely be considered job-related, nor would it likely indicate a significant probable safety or security risk to others. Therefore, the employer might not have a justifiable defense for taking any employment action against the individual because of the arrest.

[SHRM members-only HR Q&A: An employee has been arrested. May I ask about the nature of the infraction? What action can or should I take to protect my other employees?]

Sexual harassment and dishonest behavior that undermines the employer's ability to trust the employee also may prompt an employer to immediately fire a worker, noted Janice Dubler, an attorney with Ogletree Deakins in Philadelphia and Cherry Hill, N.J. "There may also be times when an employee is such a poor performer that the employer knows the employee will not be able to be rehabilitated, so it makes sense to go right to termination," she added.

'There may also be times when an employee is such a poor performer that the employer knows the employee will not be able to be rehabilitated, so it makes sense to go right to termination.'

Progressive discipline also might be skipped when firing a probationary employee and for such egregious misconduct at work as drawing racist graffiti, visiting pornographic websites or driving a company car to a strip club, noted DeDe Church, principal with DeDe Church & Associates in Austin, Texas.

Termination decisions are inherently fact-specific, said Camille Olson, an attorney with Seyfarth Shaw in Chicago, Los Angeles and San Francisco.

Policy Considerations

Although a history of using progressive discipline is helpful to employers that are defending themselves against discrimination cases, it's not a silver bullet. Sometimes, supervisors do not follow progressive discipline policies, often because they want to maintain a positive working relationship with an employee. "By the time they get to the point of giving the first warning, they are done with the employee and know the employee cannot succeed, and they just wish to go to termination," Dubler stated.

Other times, managers apply progressive discipline policies too rigidly and give a verbal warning for serious misconduct when termination is more appropriate.

But overall, managers are swifter to terminate than they used to be, according to Christine Walters, J.D., SHRM-SCP, independent consultant with FiveL Company in Westminster, Md. "Our per-capita employee cost and demands for production continue to increase," she said. "Those expenses and pressures may make it harder to find the time to coach, counsel and correct employees."

The employer's policies should clarify that progressive discipline is just for guidance and the employer retains the right to skip straight to termination at any time at its sole discretion, Dubler added. A well-written handbook will list infractions that can lead to immediate termination while preserving the overall status of at-will employment.

"But even when the policy says everything right, employees often point to failure to go through the steps and follow a progressive discipline as evidence of unfair treatment or as a pretext for discrimination," she said.

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