Employee Discipline and Employment Law

Employee discipline and documentation are two concepts that go hand-in-hand. In fact, it's kind of a chicken and the egg scenario — which comes first? To discipline an employee, supervisors should have well-prepared documentation to back up any such employment action decision. But to have good documentation, supervisors need a well-crafted disciplinary policy to enforce.

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Related articles on Employee Discipline
Employee Discipline tools for Employment Law Letter subscribers

Some of the most common problems at work that require discipline include dress code violations, poor attendance, and inappropriate or offensive behavior, such as harassment or discrimination. Human resources professionals should at least develop a plan for how to address on the front-end the most common disciplinary infractions.

Employment lawyers agree that more cases are won and lost because of documentation than any other factor. Why? Because juries like to have something to hang their hats on when making decisions. For example, an employee who is fired for coming in late every day for three months might win her lawsuit if the supervisor never documented the fact that she was late and gave her satisfactory ratings for punctuality on her performance evaluation.

Audit your discipline policies and practices with the Employment Practices Self-Audit Workbook

Employee discipline basics
The first step to keeping employee discipline problems to a minimum is making sure that the ground rules are clearly communicated to employees. In addition to a clearly communicated disciplinary policy, employers should have a prohibition against discrimination and harassment in their workplaces, as those policies are the bedrock of any internal investigation.

The employee discipline policy must be communicated to employees by periodically providing a copy to each employee, posting it, or including it in an employee handbook. Employees should be required to sign an acknowledgment that they have received and read the policy.The policy also should be covered in new employee orientation.

Basic Training for Supervisors - easy-to-read training guides, including discipline

Employee disciplinary systems
There are many systems available for disciplining employees. One system, called progressive discipline, is very popular in the labor union context. It requires the employer to progress through each step before proceeding to the next. This can be very limiting. Frequently, the facts and circumstances of a situation warrant a different type of discipline. It is better for employers to craft a system that ensures managers and supervisors have the flexibility to administer verbal warnings, suspensions, or terminations based on the seriousness of the particular incident in question, regardless of the employee’s prior disciplinary history.

Benefits of discipling employees instead of firing
But documentation isn't the only thing to think about. As the entirety of the workplace landscape changes over time, the concept of discipline has altered accordingly. Employers are increasingly taking into consideration the real cost of replacing employees with disciplinary issues before simply firing them. The focus has shifted now on what can be done to turn a lagging employee into a productive one. By letting employees know their shortcomings, and giving them a chance to improve, these efforts may save companies thousands of dollars in the long run. Addressing these shortcomings however, can take some finesse.

First Line of Defense: supervisor training series, including discipline - New

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Related articles on the Discipling Employees featured in HR Hero Line

• EEOC guidance on disciplining an employee with a disability
  (New York Employment Law Letter , March 2009)
• What can you do about workplace gossip?
  (West Virginia Employment Law Letter, April 2008)

HR Tools for Discipline

• HR Executive Special Report - How to Discipline and Document Employee Behavior
  (available for purchase by nonsubscribers)
• HR Executive Special Report - How to Manage Problem Employees
  (available for purchase by nonsubscribers)
• HR Executive Special Report - How to Fire Employees Without Getting Burned
  (available for purchase by nonsubscribers)
• Sample Policy - Personal Conduct
• Sample Policy - Corrective Action