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This article presents a checklist of best practices for employee discipline, including for poor performance, inappropriate conduct, policy violation, and unlawful activity, as well as practical guidance for creating related policies and procedures. The checklist can also be used for conducting and documenting employee evaluations.
Implement Policies and Procedures for Employee Discipline
Ensure all policies and procedures governing employee discipline are:
- Tailored to specific business needs and circumstances. Always modify model policies and handbooks to avoid:
- binding the employer to policies it would not otherwise have instituted;
- creating any unintended basis for liability because policies are unsuitable to the business or simply wrong (for example, drug testing rules inconsistent with state law or medical leave policies that do not reflect new legal developments); and
- leaving managers and supervisors with inadequate or incomprehensible guidance on how to impose employee discipline.
- Clear. Use plain language and avoid legal jargon in employee handbooks and policies governing employee discipline. Always provide contact information for employer representatives who can answer questions about disciplinary policies. Employees cannot follow rules they do not understand.
- Simple. Avoid excess detail. Numerous details create too many issues for argument during a disciplinary meeting. Simple policy language allows employers to exercise their discretion.
- Reasonable. Use common sense when evaluating whether policies are fair. Although private employers are not required (without a contractual obligation) to provide employees with formal due process when imposing discipline, fairness is a primary consideration for juries and judges evaluating legal claims brought by disgruntled employees (for example, claims of discrimination).
- Realistic and relevant. Do not impose unrealistic or irrelevant expectations on employees. These kinds of expectations are demoralizing for employees to follow and frustrating for employers to enforce. Employers should use common sense and legal advice when necessary to create functional and realistic policy expectations for their workforce.
- Accessible. Employers must provide employees with copies of written policies that they are expected to follow. Employers should be able to demonstrate employee receipt and acknowledgment of policies (or the handbooks in which they appear) with an authorization signed by the employee. Annual redistribution of policies, either online or in-hand, and re-signing of a written acknowledgment of receipt keep policies accessible and employees informed.
- Professional. Avoid excessively casual or overly friendly language in policies. An unprofessional tone may result in employees taking policies less seriously. It may also cause an employer defending these policies in litigation to lose credibility with a judge or jury.
- Supported by a business purpose. Connect every policy and procedure to a legitimate business justification. For example, unless there is a legitimate business justification for a policy imposing discipline for off-duty employee conduct, that conduct should not be regulated by a disciplinary policy (and may violate state lawful, off-duty conduct laws).
- Consistent with one another. Review employment policies as a whole to ensure they are consistent with one another. If there is any overlap between employment policies (for instance, timekeeping, standards of conduct, and leave policies), ensure that there is no loophole exception to a disciplinary policy in a separate employer rule covering a similar subject matter.
- Current. Update policies to reflect changes in federal, state, and local employment laws. Failure to comply with new or amended laws (for example, laws recognizing new protected classes) may create additional exposure for employee litigation. In a worst-case scenario, if the employee can show that the employer was aware of a change in the law and failed to adapt to it, the employer may face punitive damages. Some laws (the Fair Credit Reporting Act, for example, which affects employee background checks) include provisions for additional damages for an employer’s “willful” violation of the law. Updates also should reflect any changed circumstances in the workplace. For example, employers expanding into new states, or with remote or hybrid employees in new states, must update employment policies to reflect state or local law for employees in those states.
- Consistent with at-will employment status. Recognize the risk of applying inflexible discipline policies, and particularly progressive discipline policies, to at-will employees. Disciplinary policies that allow for discipline only under specific circumstances or through progressively rigorous disciplinary steps may inadvertently modify at-will employment status. Employers should explicitly preserve at-will employment (for at-will employees) by including a disclaimer stating that:
- disciplinary procedures and policies do not modify at-will employment and do not create a contract of employment; and
- the employer maintains the right to skip, repeat, or modify disciplinary procedures at its discretion.
- In line with contract requirements. Employee discipline involving union members or employees working under an employment contract must be consistent with their contract terms. Review collective bargaining agreements or employment contracts for these employees before imposing discipline.
- Respectful of protected activity. Some employee activity that an employer may want to prohibit or penalize may be protected by state or federal law. Employers must not maintain policies that impose employee discipline for protected activities. For example:
- whistleblower laws protect employee speech under certain circumstances;
- the Family and Medical Leave Act and its state equivalents protect employee medical leave under certain circumstances;
- the Americans with Disabilities Act and its state equivalents require employers to reasonably accommodate employees with disabilities, and accommodation may include a modified work schedule or exceptions to a policy;
- depending on the jurisdiction, state law may protect off-duty employee conduct (for example, smoking or political activity);
- while marijuana use in the workplace is governed by federal law, the use of medical marijuana pursuant to a medical marijuana card (MMC) is governed by state laws, and employers should become knowledgeable about the applicable state laws regarding MMCs; and
- in a unionized workplace, federal law protects a range of employee workplace activity related to concerted activity.
Evaluate Whether to Impose Discipline
Considerations for Imposing Any Form of Employee Discipline
- Adhere to the company’s written rules. Employers are likely to be judged on their past practices, not just their policies, if employment lawsuits arise. Ensuring that practices are consistent with policies makes employment decisions easier for employers to defend in employment litigation. Additional consequences for failure to consistently follow or enforce policies include:
- damage to employer credibility in litigation;
- risk of perceived discriminatory application of discipline;
- demoralized workforce because rules are not followed by managers and supervisors; and
- confused managers and supervisors because of insufficient guidance about company protocols for employee discipline.
- Understand the context. Before imposing discipline, develop an understanding of the employee’s particular situation. Determine whether:
- the employee has been disciplined previously;
- the employee was properly informed about policies and procedures, for instance by ensuring signed receipt of written policies; and
- a manager or supervisor may have approved the activity in question.
- Be consistent. Enforce discipline uniformly so that employees have reasonable expectations about the consequences of their actions, and so that employers reduce their risk of discrimination claims. Employers’ exercise of discretion should always be based on legitimate business and legal considerations and should never be discriminatory or retaliatory. Promote consistent enforcement of policies by:
- training supervisors and managers on disciplinary practices; and
- using consistent language to describe similar employee performance and other problems.
- Be prompt. Imposing employee discipline shortly after the act requiring discipline helps employers correct workplace problems more efficiently and strengthens legal defenses if the disciplinary action (or subsequent termination) leads to litigation. An employer’s argument that a disciplinary action or termination is the result of activity that occurred long ago is not convincing and may persuade a jury that the discipline is a pretext (or false reason given to conceal the true motive) for discrimination. Additionally, some legal defenses (for example, the Faragher-Ellerth defense) require that the employer take prompt remedial action.
- Do not retaliate. Federal and state law prohibit employers from taking adverse employment action (like demotion, change in compensation, and termination) against employees who participate in legally protected activity. When determining whether to impose discipline, ensure that the disciplinary action taken is not unlawful retaliation.
- Be specific. Employers should avoid generalizations when imposing discipline and evaluating employee performance. Employers should premise employment decisions, particularly decisions to impose discipline that could affect an individual’s continued employment, on the employee’s specific conduct, demonstrated skills, or actual work history. It is insufficient for an employer to note generally that the employee has had performance problems, demonstrated poor work habits, had a “bad attitude,” or violated rules. Vague descriptions do not adequately support an employer’s position that it took an adverse employment action for legitimate business purposes, which is the standard an employer must meet to defend against a discrimination claim successfully.
- Be honest. Employers should be honest, avoiding both exaggeration and understatement, when imposing discipline and evaluating performance. Personal relationships and friendships frequently stand in the way of effective employee discipline. Employers that are not honest about the true basis for disciplinary action may create the impression that the reason cited for the discipline was a pretext for unlawful discrimination.
- Be discrete. Keep disciplinary meetings away from other employees to avoid embarrassing the employee in question and disrupting the workplace. Discretion also helps reduce the risk of emotional distress claims.
- Be fair. Employees are more likely to file employment lawsuits if they believe that their employer’s disciplinary process was unfair. Common decency should always be a part of any disciplinary process.
- Document the disciplinary process. Employers must be able to support disciplinary decisions in writing. Juries are typically suspicious of a lack of documentation because it can suggest that discrimination is the actual basis for an employment decision. Employers should prepare written records thoughtfully and with the assumption that all records will become available to the opposing party (the employee or former employee) in litigation. Proper documentation should include, at a minimum, signed and dated acknowledgments by the employee and the employer. Employers should provide the employee in question with a copy of the written record of the discipline and maintain a copy in the employee’s personnel file, as well. Written records of employee discipline:
- help employees understand employer concerns;
- help employees understand how to address those concerns; and
- protect employers’ interests in litigation by helping them meet their burden to offer a nondiscriminatory reason for the disciplinary decision.
- Allow employees to respond to critiques. Documentation of a disciplinary decision should include space for employees to make their own written comments about the discipline and the circumstances that prompted it. Allowing the employee to comment confirms that the employee received a clear message about the problem and prevents the employee from making contrary arguments about the disciplinary process in litigation.
- Conduct a face-to-face disciplinary meeting. Conveying employee discipline to an employee through an in-person disciplinary meeting helps the employee recognize the significance of the employer’s concerns. However, disciplinary meetings have the potential to give rise to confrontations. To promote constructive disciplinary meetings and reduce the risk of confrontation:
- create a script for the disciplinary meeting based on clear and consistently applied policies and realistic expectations;
- always include a witness in disciplinary meetings to help respond to potential confrontations and be available to testify about the substance of the meeting in subsequent legal proceedings if necessary;
- treat the employee with respect; and
- choose a neutral location for the meeting venue (for example, a private conference room rather than a supervisor’s office).
- Conduct a follow-up meeting. Employers imposing discipline should also schedule a follow-up meeting to take place from three weeks to three months after the initial meeting. These important but often overlooked meetings can ensure that the employee understood, accepted, and learned from the initial disciplinary message. A follow-up meeting also reinforces the idea that the purpose of the initial meeting was improvement of employee performance or correcting employee problems, rather than punishment. Use the follow-up meeting to determine whether the employee met the objectives created in the initial disciplinary meeting and made appropriate changes in performance or behavior. As in the initial meeting, careful planning, a neutral setting, clear communication, and documentation are critical.
Considerations for Imposing Discipline for Poor Performance
- Be objective. Use objective criteria when evaluating employee performance and imposing discipline. Although there are positions where subjective qualifications are important (for example, leadership ability for a management position), employers should attempt to measure employee work performance in objective terms that are uniformly applied in an unbiased manner. If an employer relies excessively or exclusively on subjective criteria, the subjective evaluation may be regarded as pretext for discrimination. Examples of objective criteria include:
- quantifiable achievements, such as sales figures or completed projects;
- percentage of work that must be revised or rewritten; and
- attendance and tardiness (accounting for the requirements of relevant state and federal leave and reasonable accommodation laws).
- Consider implementing a performance improvement plan (PIP). A PIP is a tool employers can use to help employees correct performance shortcomings. Managers or supervisors typically outline the areas needing improvement, either with or without employee input, and seek approval of the PIP from more senior managers or human resources professionals. PIPs typically include:
- a list of areas requiring improvement, including examples of poor performance indicators demonstrated by the employee;
- an outline of the employer’s expectations for the employee’s performance, including a description of how to achieve the desired result;
- a description of the consequences for failure to achieve the improvement specified in the PIP;
- a description of the resources available to help the employee achieve the desired improvement (for example, mentors, publications, and computer programs); and
- a process by which progress is monitored, including subsequent meetings or progress reports.
Considerations for Imposing Discipline for Policy Violations, Inappropriate Conduct, or Unlawful Activity
- Evaluate the consequences of not imposing discipline. Employers that fail to respond to unlawful workplace conduct may face legal exposure for neglecting or declining to respond. For example, employees engaging in sexual harassment, workplace violence, discrimination, or safety violations may create liability for the employer if that employer does not promptly and effectively correct or stop the conduct.
- Conduct an internal investigation into workplace wrongdoing. An internal investigation is required when suspected wrongdoing is the cause of the employee discipline. Conducting internal investigations before imposing discipline ensures that disciplinary actions are supported by competent evidence. Employers should conduct investigations promptly to help create a stronger legal defense and to gather witness interviews before memories fade. The scope of the investigation depends on the specific circumstances, but failure to conduct an investigation may result in:
- increased risk of litigation from employees harmed by the wrongdoing;
- increased risk of litigation from employees who are falsely accused of wrongdoing; and
- low employee morale because issues are not resolved.
- Take disciplinary steps soon after completing the investigation. Avoid delays between investigating and imposing discipline to avoid creating the appearance of pretext.
- Designate an investigation team for workplace wrongdoing. Specify a core group of employer representatives to spearhead any investigations into employee misconduct to:
- promote consistent handling of investigations; and
- limit the number of individuals who know about the investigation findings.
- Distinguish unlawful activity off-the-job. Employers should only discipline employees for unlawful off-duty activity if there is a legitimate business purpose for the discipline. Employers should familiarize themselves with relevant federal and applicable state law and proceed cautiously when considering imposing discipline, particularly discipline that may lead to termination, because:
- the Equal Employment Opportunity Commission has issued guidelines on the use of criminal history in employment decisions, and historical statistics suggest that minority populations may be disproportionately impacted by employment discipline resulting from arrests or other criminal sanctions, making discrimination claims more likely;
- many states offer legal protection from employment discrimination based on arrests or other indicators of criminal activity; and
- discipline relating to off-duty drug use may implicate state law authorizing use of medical or recreational marijuana.
- Consider unlawful activity on the job. Although on-the-job crimes are a reasonable basis for employment discipline or termination, employers must exercise caution in these instances, as well. Employers imposing discipline for on-the-job criminal activity may be at risk for claims of, for example, defamation from employees who have been wrongly accused. Employers should consider contacting state or federal authorities, as well as outside counsel, in the event of a workplace crime.
Consider Options for Disciplinary Measures
Apart from rules created by contract, there are no strict legal rules about what kind of employee discipline is required under any given circumstance. No matter which disciplinary option an employer selects, employers should document all forms of discipline. In addition, employers should impose all forms of discipline in a face-to-face meeting.
Disciplinary options include:
- Verbal counseling. Verbal counseling is the least severe and least formal option for employee discipline and may correct minor problems (like infrequent tardiness) and serve as an introductory step towards correcting more significant problems (like inappropriate conduct or poor performance).
- Written warning. A written warning signals to the employee that the employer has made the conduct at issue a high priority. Written warnings alert employees that they must take meaningful steps toward correcting the problem to avoid additional corrective action, up to and including possible termination.
- Follow-up written warning. A follow-up written warning can record an employee’s successful response to previous warnings or alert the employee that without dramatic improvement in the problematic condition, termination is the likely next step.
- PIP. Employers are not obliged to help employees improve performance, but doing so promotes the best interest of the company, preserves investment in employees, and may produce better results than less structured discipline. PIPs require more employer input and energy, but for good employees who need more guidance or encouragement to do their job properly, PIPs may be worth the additional effort.
- Suspension. Suspending employees from work is an extreme measure that may cause disruption or workplace gossip and should be carefully considered. Suspensions are most common when the discipline at issue creates the need for an internal investigation. Suspensions to conduct investigations should last as long as the course of the investigation. Review state and federal wage and hour laws when suspending employees to ensure proper compensation of the suspended individual. As with all forms of employee discipline, be aware of the risk of claims of discrimination or retaliation.
- Change employment terms or conditions. Demotions, reassignments, or changes in compensation are generally regarded as adverse employment actions in litigation. This means that employees can sue on the basis of discrimination or retaliation, for example, for these changed employment circumstances even if they are not terminated from employment. The increased risk of litigation on the basis of discrimination, retaliation, and failure to pay wages makes these options riskier than less severe disciplinary steps.
- Termination of employment. This most extreme form of employee discipline should be reserved for appropriate circumstances. Best practices include:
- ensuring that the employee was made aware of the underlying problem and had an opportunity to respond through the disciplinary process;
- following the same protocols for face-to-face meetings and documentation that apply to general disciplinary action;
- following all relevant policies and procedures specific to termination (for example, return of employer tangible and intangible property);
- ensuring full payment of all wages owed in accordance with governing state and federal law;
- conducting an exit interview;
- treating the departing employee with respect; and
- entering into a separation agreement including a waiver and release of legal claims when possible and appropriate.
This article originally appeared in Thomson Reuters Practical Law. © 2023 by Thomson Reuters. Thomson Reuters is a Sponsor of the GPSolo Division, and this article appears pursuant to the Division’s agreement with them. This article is not an endorsement by the ABA or the Division of any Thomson Reuters product or service.
Reprinted with permission in GPSolo eReport, Volume 12, Number 12, July 2023. © 2023 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association or the Solo, Small Firm and General Practice Division.