Employee Discipline—Using a Progressive Discipline System

Virtually all collective bargaining agreements between unions and employers require some form of progressive discipline.  A well designed progressive discipline program is intended to help employees correct any shortcomings with the goal of becoming a valuable, contributing member of the workforce.  Non-union employers will generally find a progressive discipline system a positive tool as well.

Although 49 of the 50 states fully embrace the employment at will doctrine, which in theory allows an employer to discharge an employee with impunity, the judicially recognized exceptions to the at will doctrine and the federal and state statutes governing the workplace, make discipline and discharge a matter that requires careful consideration.  Generally no discharge should be initiated without consultation with employment counsel.

The following are guidelines to consider in implementing a progressive discipline policy.

STEP 1: Establish a Workplace Code of Conduct

Employees must have fair and reasonable notice of what is expected of them.  They need to 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

There are as many variables in workplace rules of conduct as there are employers.  Employer rules generally fall into one of the following categories, however:

1. Rules governing attendance and tardiness; dress; and the like (the kind of matters that an employee must consider daily).
2. 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 email; whether an employee may use a photocopy machine for personal use.
3. Rules governing more serious conduct such as drug or alcohol abuse; workplace safety; or sleeping on the job.
4. Rules that may lead to immediate suspension and/or discharge, e.g., violence in the workplace, sale of illegal drugs, or carrying a firearm to the workplace.

STEP 2: Discipline 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 avoid successful claims of discrimination or other unlawful conduct.

Critical to fair and just discipline are:

• Thorough investigation of the circumstances, including interviewing of witnesses, etc.
• Providing notice of the misconduct to the employee.  Too often employers fail to clearly communicate to the employee the nature of his or her infraction.
• 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.
• 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.

Some infractions are so serious that the employer must take immediate action for the well-being of the workplace and/or other employees, for example, if an employee is involved in violence in the workplace.  Under such circumstances, the employer may wish to suspend the employee “subject to discharge.”  The employee is suspended without pay pending an investigation, which should be done expeditiously.  If the investigation exonerates the employee, the lost pay is restored.  If the investigation supports discharge or similar severe discipline, the employer may then proceed to initiate that discipline.

STEP 3: Elements of Progressive Discipline

Although there are a variety of progressive discipline programs, the following is a sample of the steps in a progressive disciplinary program:

• Counseling: For a first offense and a minor infraction, an oral discussion characterized as “counseling” is appropriate.  The employee’s supervisor should inform the employee of the infraction and clearly advise the employee of the conduct expected.  It may be appropriate to warn the employee that future infractions could result in more severe discipline.
• Verbal Warning/Reprimand: A verbal warning or reprimand is appropriate for a more serious offense where counseling is inadequate.  It could also be a step following counseling. When issuing an oral warning the employer should clearly advise the employee regarding what is needed to improve the employee’s conduct and advise the employee that more severe disciplinary consequences will follow repetition of the infraction.  The supervisor should definitely memorialize the verbal warning or reprimand.  At the option of the employer, the memorialization will go into the employee’s personnel file. 
• Written Warning(s)/Reprimand: The next step is the written warning or reprimand.  This document should clearly state the infraction and clearly state the consequences for a repeat offense.  The written warning or reprimand should be placed in the employee's personnel file.
• Second Written Warning(s): An employer may wish to include a second written warning as part of its progressive program, or the employer may move directly from the first written warning to suspension.  The determination of how many steps should be in the policy and the details of each step will be informed in large part by the nature of the business and the nature of the disciplinary issues that generally arise in that environment.
• Possible Courses of Action:
  • Transfer.  Sometimes an employee who performs poorly in one position will perform well in another.  Employers may consider a transfer in lieu of termination or other severe discipline. 
  • Withhold compensation increases.  Employees should not be rewarded for poor performance.  An employee who has a pattern of misconduct may be denied a compensation increase. 
  • Demotion.  It may be appropriate to demote an employee, perhaps to a level where the employee may better perform.
  • Suspension: Another possible course of action would be a suspension without pay.  The length of the suspension may vary from a day or two to a week or more, depending upon the seriousness of the infraction.  An employer may use progressively longer suspension.  However, generally if an employee has reached the level of a suspension, discharge may be the next most appropriate step.
  • Termination: The decision to terminate an employee should be one made as a result of consultation by the employee’s supervisor with one or more upper level managers.  The decision should never be made by a single person.  Consistency is important.  An employer opens itself to various legal claims if one employee is discharged for an infraction while another employee is merely suspended for a few days.