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Overview

An effective discipline program is beneficial to both the employer and employee. It helps employees correct any shortcomings with the goal of becoming a valuable, contributing member of the workforce. Documentation created as a result of the discipline process can also help protect an employer in the event that a termination or other adverse employment decision becomes necessary. It is useful to view the matter of discipline as having several components: issues that must be addressed before administering discipline; methods of disciplining, including progressive discipline; how to provide employees with an opportunity to respond to discipline, such as a grievance program; and laws relevant to termination.


Pre-Discipline Issues

Matters to consider before disciplining employees include: ensuring that employees know what is and is not permitted in the workplace; how to discipline with fairness; and how to properly conduct an investigation into allegations of employee wrongdoing.

Establishing a Workplace Code of Conduct

First and foremost, employees must have fair and reasonable notice of what is expected of them. They must know the parameters of permissible and prohibited conduct in the workplace. Rules should be:

  • Clearly communicated to all employees in writing.
  • Compliant with state and federal laws.
  • Consistently and fairly enforced.

Employer rules generally fall into one of the following categories:

  • Rules governing day-to-day matters, such as attendance, tardiness, and dress.
  • Rules defining what is permissible within the culture of the company (e.g., whether employees may use company phones or computers for personal calls or e-mail).
  • Rules governing more serious conduct such as drug or alcohol abuse, workplace safety, or sleeping on the job.
  • Rules that, if not followed, may lead to immediate suspension and/or discharge (e.g., violence in the workplace).

Disciplining with Fairness

If employees believe they are being treated fairly, they are much more likely to accept the consequences of their actions. Consistent and fair discipline will also help to prevent successful claims of discrimination or other unlawful conduct.

Critical to fair and just discipline are:

  • Thoroughly investigating the circumstances, including interviewing of witnesses, etc.
  • Providing notice of the misconduct to the employee.
  • Allowing the employee an opportunity to respond to the allegation.
  • Making the "punishment fit the crime." Draconian discipline for a minor infraction is counterproductive, and modest discipline for a serious infraction is not helpful.
  • Generally, an employee should have some right to appeal a disciplinary decision to some person above the rank of the one issuing the discipline who was not involved in the initial decision.
  • Employers must keep a careful paper trail to document each infraction and the discipline administered.

Investigating Misconduct

Allegations of employee misconduct or wrongdoing should be carefully investigated. If an employee is accused of misconduct or a rule infraction, the employer should promptly, fairly and thoroughly conduct an investigation into the matter to make an independent determination of the facts and circumstances surrounding the alleged misconduct. When an employer fails to properly investigate, the employee may gain a resource to support a claim of discrimination or similar unlawful act.

Every employer should establish a protocol for internal investigations so that investigations can be conducted on a uniform basis. The protocol should specify both the persons to conduct the investigation and the process to be used in the investigation (such as the interviewing of alleged witnesses). The goal is to be thorough—to learn all the facts surrounding the alleged misconduct to reach an informed decision as to what occurred.

 See How to Conduct an Investigation.

Note: Please be sure to consult with an employment law attorney or HR specialist when developing an investigation policy/process. Situations that require investigations can be very sensitive, and it is prudent to consult with a professional to obtain specific guidance to help avoid potential liability issues.

Use Documentation

All matters involving employee discipline, discharge, injury or any other circumstance that could give rise to employer liability should be carefully and accurately documented. Months or even years after the incident, when memories have faded, the careful, thorough documentation of events will help refresh recollection and tell the story accurately.

Among the documentation that the employer should gather and retain are:

  • Initial complaints, including any complaint forms.
  • Witness reports.
  • Written materials relevant to the investigation, including e-mails or notes.
  • Meetings with the employee at issue.
  • The employee's personnel file, including any previous discipline reports or investigations, and notes relating to any verbal or written warnings.
  • Discipline or termination reports.
  • Individual notes of supervisors or other management personnel involved.

Suspension Pending Investigation

If the circumstances require an investigation that cannot be concluded in several hours, and/or if the presence of the employee who is the subject of the investigation poses a threat of any kind to other employees or to the orderly operation of the business, the employer may wish to suspend the employee pending completion of the investigation. For example, if an employee is charged with embezzlement or workplace violence, the employer may wish to remove the employee from the premises pending completion of the investigation. The suspension may be done without pay; however, if the investigation exonerates the employee, the employee should be paid for the days of suspension. If the investigation confirms the misconduct, the suspension without pay should stand.

Using Progressive Discipline

Progressive discipline is a method of discipline that uses graduated steps for dealing with problems related to an employee's conduct or performance that do not meet clearly defined standards and policies. The ultimate objective of progressive discipline is to help employees correct conduct problems and resolve performance issues in the earliest stages. See our four-step guide, How to Use a Progressive Discipline System for more details.

View sample policies and a sample form at the following links:

 Progressive Discipline Policy – Single Disciplinary Process

 Progressive Discipline Policy – Varied Disciplinary Process Based on Type of Misconduct

 Written Warning

Employee Opportunities to Respond

Grievance programs and the use of one or more alternative dispute resolution methods provide a forum for employees to challenge an employment decision.

Grievance Programs

A grievance procedure allows employees a formal avenue through which to seek a forum and possible redress if the employee thinks he or she has been wronged in some way. These programs often serve a "therapeutic purpose." Even when an employee does not get the result he or she wishes, having had the opportunity to be heard may help to ease the employee's frustration or dissatisfaction.

An internal grievance program should have a minimum of two steps and probably no more than three:

Step 1. The employee initiates a grievance with his or her supervisor. If the issue involves the supervisor, an alternative manager should be made available (e.g., the human resources director).

Step 2. If the employee is dissatisfied with the response at the completion of Step 1, the employee should be able to request consideration of the grievance by either the employee's supervisor's immediate superior or another person ranking higher than the supervisor.

Step 3. If a third step is included, the grievance might be referred to the level of a regional or divisional human resources or industrial relations director, or to an officer of the company.

See Grievance Procedures: Non-Union to view a sample policy.

It is also important to provide employees an avenue for making positive suggestions or asking questions, whether through a suggestion box or otherwise. The ultimate goal is to create a work environment where employees and their managers view themselves as "us" and all on the same team, rather than an "us and them" dynamic, which inevitably leads to conflict.

Alternative Dispute Resolution

If the grievance procedure does not bring resolution of the matter, the employer may want to offer alternative dispute resolution, which includes mediation (which is nonbinding) and/or final and binding arbitration. Alternative dispute resolution is typically faster, less expensive and less formal than litigation. In simple arbitrations, the employer might choose to be represented by a manager rather than counsel, thereby saving in legal fees. (Employers should use counsel when significant amounts of money are at stake or when the issue has broad impact within the company.)

Mediation

Mediation is a voluntary process in which a trained neutral works with the parties to facilitate an agreement to resolve their dispute. A good mediator may be able to help the parties "see the forest for the trees" and realize that a compromise solution may serve all concerned. Ideally in mediation the employee grievant and the employer are actively engaged in crafting a solution, so that both have ownership of the solution. Such a mutually designed solution encourages compliance by both parties.

Mediation can stand alone, or it may be a preliminary step preceding arbitration or even litigation.

Arbitration

In arbitration, parties agree to submit their dispute to an outside third-party neutral, who renders a final and binding decision regarding the dispute. Arbitrators need not be attorneys, though many are. They may or may not insist on the traditional rules of evidence that govern litigation in courts. Arbitration proceedings are usually much less formal and expensive than litigation, affording the grievant a real opportunity to feel heard.

Arbitration decisions are generally subject only to extremely narrow review by courts, and they are rarely set aside. Another advantage of arbitration is that it is private and not public, in contrast to litigation.

For more information on mediation and arbitration, visit the American Arbitration Association's website.


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