It's Critical to Distinguish Between Performance and Conduct Issues

​Organizations typically refer to their "standards of performance and conduct" as a general "catchall" for their policies, procedures, and workplace expectations and guidelines.  But there's a tremendous difference between a performance infraction and a conduct violation, and it's critical that you understand how they are treated in the workplace.  In short, with performance infractions (including attendance and tardiness problems), you're expected to take employees through "steps" of progressive discipline, typically labeled "verbal," "written," and "final written" warnings.  Not so with conduct infractions, however:  you have a lot more discretion there than you think! 

Performance infractions typically refer to substandard productivity in the areas of quality, quantity, speed, customer service, and even attendance/tardiness (although many companies split attendance out from the broader "performance" category in their progressive disciplinary action policies).  When problems occur in these areas, companies are expected to provide "workplace due process" as outlined in their employee handbooks and policy and procedure manuals.  Specifically, a step system of increased consequences gets documented each time an additional infraction occurs, and each progressive step contains some added element indicating the severity of the situation if it isn't remedied immediately.  Most companies follow a "three strikes and you're out" progressive discipline paradigm that looks something like this:

Step 1:             Documented verbal warning (AKA first written warning)

Step 2:             Written warning (AKA second written warning)

Step 3:             Final written warning

After that final written warning is issued, an additional violation will typically justify termination of employment.  There can be exceptions, of course.  A new hire that is 30 days into a new position with her company may be terminated without prior written documentation or may receive one documented warning just to protect the company from legal liability before being dismissed. (It depends on the company's tolerance for risk: Some organizations feel that the one written warning will serve as an insurance policy of sorts to keep plaintiff attorneys from suing because "Did you ever receive documented corrective action before you were terminated?" is still one of the first questions that plaintiff attorneys ask when considering whether to take on a new case.)  On the other hand, a 30-year employee may be accorded greater workplace due process because of his years of tenure.  As an example, the individual may be given a "Performance Improvement Plan," "Letter of Clarification," or a one-day "Decision-Making Leave" as incremental, additional steps that document the problems without escalating the formal corrective action chain that leads to termination.

Whatever the case, when it comes to performance and attendance infractions, the general expectation is that the company follows its policies and accords workplace due process in the form of stepped up corrective action notices so that the worker understands what the problem is, what he needs to do to fix the problem, and what the consequences will be if he fails to demonstrate improvement within a reasonable period of time. 

Not so with conduct infractions:  Conduct infractions may lead to immediate dismissal even for a first offense where there is no prior corrective action on record.  And even if a company opts not to terminate on a first offense, the organization may arguably proceed straight to a final written warning and stop just shy of termination—even for a first offense.

If an employee engages in theft, fraud or embezzlement, then termination is usually the result—even for a first-time offense.  In such cases, the issue drives the outcome, meaning that the company doesn't have the discretion not to terminate (even if it wanted to).  It simply has to terminate for the sake of the record that's being created and to avoid creating an unwanted precedent.  After all, if you don't terminate Employee #1 for stealing, how could you justify terminating Employee #2 at some point in the future without looking like a discriminatory employer? 

This makes horse sense—If someone stole from the company, he should expect to be fired, so you—the manager—probably wouldn't have too much of a challenge justifying termination for someone on your team who took cash out of the till.  But what about someone who demonstrates a total disrespect or contempt for his supervisor or coworkers?  What about someone who constantly demonstrates a "bad attitude" and kills workplace camaraderie and departmental morale?   Many employees mistakenly assume—as do their supervisors—that as long as their performance is acceptable, the company can't do anything to them to address their poor conduct. 

Not so . . . That's a very serious mistaken assumption on the employee's part, and a key blind spot for supervisors who don't realize they have discretion to escalate through the progressive discipline process to address the problem.  After all, all employees are responsible for both their performance and conduct: they don't simply get to focus on one and not the other.  Everyone is responsible for performing at an acceptable level and ensuring that their coworkers feel welcome and comfortable working with them. 

Therefore, when an investigation reveals that someone is bullying, confrontational, condescending, or otherwise vexing to his supervisor and teammates, remember that you have the discretion to move straight to a final written warning—even for a first offense, if necessary.  Again, supervisors often have a lot more discretion than they think and should never feel like they're being held hostage by employees who otherwise act like worms in an apple. Gross misconduct is an exception to the "three strikes and you're out" paradigm, and managers would be wise to use this exception to their benefit when the opportunity arises.

Paul Falcone (www.PaulFalconeHR.com) is CHRO at the Motion Picture & Television Fund in Los Angeles and author of 101 Tough Conversations to Have with Employees, 101 Sample Write-Ups for Documenting Employee Performance Problems, 96 Great Interview Questions to Ask Before You Hire, and 2600 Phrases for Effective Performance Reviews.  This article is adapted from 75 Ways for Managers to Hire, Develop, and Keep Great Employees (AMACOM / HarperCollins Leadership, 2016).