Best Practices for Employee Discipline

 

Employee discipline is a necessary but often fraught element of workforce management. Disciplinary action taken in lieu of immediate termination can help mitigate the risk of potential wrongful termination claims, but failure to handle employee discipline properly can negatively affect employee morale and expose employers to other legal claims. Therefore, it is important for employers to consider a variety of factors before disciplining employees.

 

To minimize legal risks and protect employee morale, employers may consider each of the following best practices in implementing employee discipline:

 

 

Action Steps

 

Prior to taking any disciplinary action, employers should carefully consider their obligations and any potential legal or business risks. This Compliance Bulletin provides best practices for employers to reduce risks when implementing employee discipline by ensuring compliance with legal and contractual requirements and maintaining a positive company culture.

 

Steps for Implementing Employee Discipline

 

Establish Consistent Policies

 

 

The first step in creating a disciplinary protocol is to establish clear and consistent policies for implementing employee discipline. Employers are generally not required to distribute written discipline policies to employees but may consider doing so as a best practice. Disciplinary policies may take various forms and may be provided as a standalone policy or included in the employer’s employee handbook. In drafting such employee-facing policies, employers may want to consider the following factors:

 

 

 

In addition to employee-facing policies, employers may also consider creating separate discipline protocols that are only accessible to personnel tasked with enforcing disciplinary actions (e.g., HR and supervisory personnel). These internal policies may include more detailed procedures for employee discipline and guidance for those in charge of disciplining employees. Such policies can help ensure that personnel responsible for employee discipline treat all employees consistently for the same or similar problems.

 

Establish a Lawful and Nondiscriminatory Reason for Discipline

 

 

When implementing employee discipline, it’s vital to establish a lawful, valid and nondiscriminatory reason for the discipline. Valid reasons for discipline may include performance-related or attendance issues, inappropriate behavior in violation of company policy, cost-saving measures and position elimination.

 

In all cases, employers may not discipline an employee for any unlawful reason, including the following:

 

 

 

In addition to the restrictions above, some states and municipalities have enacted additional restrictions on when employers may discipline employees for off-duty conduct. For example, in some states, employers are restricted from disciplining employees who engage in lawful off-duty conduct (e.g., using legalized marijuana or engaging in political activities).

 

Moreover, some states offer protections for certain unlawful off-duty conduct as well. For example, some state laws protect employees from discrimination on the basis of arrest or conviction records. Therefore, employers should carefully review state and local laws before disciplining employees for activities conducted outside of the workplace.

 

 

Even if the employer has established a lawful justification for discipline, employees may take legal action against employers in connection with disciplinary measures when other circumstances could reasonably suggest the employee was disciplined for unlawful reasons. Such circumstances may include:

 

 

The risk of such legal action is generally greater for more severe forms of discipline, such as demotion, than milder forms of discipline, such as verbal or written warnings.

 

 

To avoid a potential claim of discrimination or retaliation, it is imperative that employers document the lawful, nondiscriminatory reason for discipline. Specifically, in the event an employee later claims that they were disciplined for any unlawful reason, proper and timely documentation can provide a contemporaneous defense for the employer.

 

Conduct an Investigation

 

In certain circumstances, particularly where an employee is believed to have engaged in illegal or other inappropriate conduct, employers should first consider conducting an investigation to verify the wrongdoing. Conducting a prompt and fair investigation can help protect employers from future liability in the event they must take adverse action against the offending employee. Further, investigations can help protect employers in the event another employee is affected by the offending employee’s conduct (e.g., alleged harassment), as it demonstrates the employer took reasonable efforts to correct such conduct.

 

Employers should assign a qualified team to conduct the investigation, which may include HR professionals, in-house legal counsel and other qualified personnel. In assigning such a team, employers should ensure impartiality. For example, employers may wish to avoid investigations conducted by an individual involved in or affected by the employee’s actions or who has a personal relationship with the employee. Finally, it is important to conduct the investigation promptly so that witness interviews and other fact-finding are as accurate and comprehensive as possible.

 

Where an employer confirms wrongdoing, it is important that disciplinary action is taken in a timely manner so that it is clear the discipline is a direct result of the findings of the investigation rather than a pretense for another unlawful reason (such as discrimination).

 

Consider Contractual Restrictions

 

In some cases, employers will be restricted in the manner in which they may discipline employees pursuant to a contract or other agreement. One of the most common instances in which employers are restricted is with respect to collectively bargained employees. Frequently, collective bargaining agreements will set forth a specific disciplinary policy that employers must adhere to with respect to any employees covered by such agreement. Less frequently, employers may be limited by their own policies or pursuant to an individual employment agreement.

 

Therefore, employers should carefully review any relevant documentation to ensure that their proposed method of discipline does not violate their contractual obligations.

 

Select the Disciplinary Approach

 

After establishing the nature and severity of the problem, employers must then determine which form of discipline would be appropriate. Unless employers are constrained by a contractual disciplinary policy, such as one contained in a collective bargaining agreement, employers may generally select whichever form of discipline is most appropriate under the circumstances (so long as it is not done for discriminatory or retaliatory reasons).

 

Appropriate discipline will depend on a number of factors, including:

 

 

Often, employers will use “progressive discipline.” Progressive discipline generally involves applying increasingly severe forms of discipline as necessary. Approaches to discipline may include but are not limited to any or a combination of the following (which are listed in order from least to most severe):

 

 

In each case (including with respect to verbal warnings), employers should document the approach to discipline, along with any follow-up, including employee progress or continued employee deficiencies. Such documentation can provide support for an employer’s decision in the event an employee claims they were treated unfairly or discriminated against.

 

 

Generally, employers take disciplinary measures with the goal of improving employee performance so that they may continue and, ideally, thrive in their current position. However, in some cases, employers may determine that termination is more appropriate. Some instances in which termination may be necessary or preferable include but are not limited to:

 

 

However, employers should be careful to ensure that there are no contractual or legal restrictions on employee terminations. For example, while most employees are considered “at will” (which means an employer may terminate their employment at any time for any lawful reason), some employees may be subject to an agreement that indicates employment is not at will. Therefore, employers should carefully review any existing agreements with the employee, including offer letters, handbook agreements or other contracts, to ensure that there is no language that indicates employment is not at will. Further, similar to disciplinary action, employers may only terminate employees for lawful and nondiscriminatory reasons.

 

Communicate the Disciplinary Action to the Employee

 

After establishing a preferred approach to discipline, employers should generally conduct an in-person or, for remote work environments, a video meeting to communicate the disciplinary approach. Doing so allows the employee to ask questions and understand expectations and helps to promote a collaborative approach to such discipline. In conducting such meetings, employers may wish to consider the following measures:

 

 

 

Following the disciplinary meeting, employers may wish to conduct regular check-ins to monitor whether the employee is meeting the goals and objectives established during the meeting. During such check-ins, employers may identify additional resources, provide more feedback or offer positive encouragement. Employers should also ensure they properly document any progress or lack thereof to support future employment or disciplinary actions.

 

Key Takeaways for Employers

 

Employee discipline can be complex and requires employers to contend with various legal requirements and business considerations. To minimize risk, employers should establish clear and consistent disciplinary policies and ensure proper documentation. Employers may also wish to train managers, supervisors and other HR personnel on compliance with such policies and their obligations under relevant employment laws.