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It is important that supervisors understand the company's guidelines for discipline and the basis for making disciplinary decisions. The guidelines discussed below should not be part of your employee handbook, but should be included in a supervisor's guide for disciplining employees.
Compliance Checklist
- Does the Company have a checklist for preparing supervisors for disciplinary discussions?
- Are the "seven questions" asked every time an employee is disciplined or terminated?
- Does the Company have a disciplinary training program for supervisors?
- Are supervisors made aware of issues involving abusive interviews and false imprisonment?
- What is the procedure for documenting disciplinary decisions and the reasons for the decisions?
- What information is contained in the Company's written warning?
- Are employees provided with a written notice of discharge?
- Does the Company conduct a formal exit interview?
Lawsuits resulting from disciplinary actions can be controlled through effective management of the discipline process. The questions employers fail to ask and their failure to document facts related to disciplinary incidents lead to the increased possibility of litigation. Using constructive discipline in reaction to poor performance or rule violations, and not merely punishment, can avoid legal claims and improve staff performance and attitudes. As in our prior newsletter on terminations -- at-will employment -- hopefully you have a clear statement and a disclaimer that your handbook or policies are not contracts of employment.
The Seven Most Important Questions
There are seven questions that should be asked by the employer before the employee is disciplined or terminated.
Generally, if an employer can answer "yes" to each of the seven questions set forth below, it has taken every step necessary to make a justifiable and defensible business decision, it should be able to minimize the legal claims filed against it, and it should be able to win any claims that are subsequently filed by employees. Before you discipline or terminate an employee, make sure you can answer each of these 7 questions.
- 1. Has the employee received fair warning of the possible discipline and the consequences of the employee's conduct?
- 2. Is the employer's rule or managerial order reasonably related to the operations of the Company?
- 3. Has an effort been made to discover whether the employee did, in fact, violate or disobey the employer's rule or managerial order?
- 4. Has the investigation been conducted fairly and objectively?
- 5. Is there "substantial evidence or proof" that the employee is guilty as charged?
- 6. Have the employer's policies been applied consistently to all employees? (Inconsistent application of policies is frequently a major problem for employers in legal actions. If an employee in a protected class can point to another similar incident in which an employee not in a protected class either received lesser, or no, discipline, it becomes very difficult for an employer to justify the action.)
- 7. Does the proposed degree of penalty reasonably relate to the offense?
If the answer is "NO" to any of these questions, the employer may have a difficult time successfully defending against an employee's subsequent claim of discrimination (e.g., race, age, sex, sexual harassment, disability, religion, etc.) or wrongful discharge, or it may have a difficult time proving just cause in an arbitration hearing, if you have a union.
Disciplinary Techniques
Supervisory training is critical to the success of any constructive discipline program. Here are some useful techniques and considerations that a supervisor can use to effectively discipline employees:
- 1. Cool down: The supervisor must remain calm, no matter how ridiculous the employee's excuses or accusations.
- 2. Get the facts: Operate on solid facts: Who, what, when, where and why? What rule was violated?
- 3. Be decisive: Do not postpone disciplining employees.
- 4. Have the supervisor do it: It is part of the supervisory job.
- 5. Be flexible: Consider personalities. Technique, tone of voice and approach are all important. Recognize that employees are different and approach them accordingly.
- 6. Do it privately: It is the way all employees want to be treated.
- 7. Attack the offense, not the offender: Do not make it "personal."
- 8. Do not overemphasize the single mistake: Discuss both good and bad segments of the employee's performance.
- 9. Avoid chest-thumping: Persuasion and explanation produce results.
- 10. Explain why and seek agreement: Explain the reason for the rule.
- 11. Discipline present, not past, offenses: Apply a progressive penalty.
- 12. The penalty and the offense should "fit".
- 13. Show confidence in future behavior.
- 14. Do not hold a grudge.
- 15. Be consistent: Consistency in discipline is difficult to achieve but important if ever faced with a discrimination claim.
Documentation of Discipline
Accurate and adequate documentation frequently makes the difference between winning or losing discharge cases. An effective supervisory training program must include a review of applicable documentation procedures and disciplinary action forms. Progressive discipline must be used whenever appropriate and documentation must be kept each time a supervisor counsels an employee on poor performance. All information must be kept in the employee's personnel file.
The following records and procedures will be of great value to any employer faced with discipline claims:
- 1. Record all incidents of, and reasons for, employee absenteeism and tardiness.
- 2. Record all incidents of misconduct or poor job performance indicating the date, time, place, specifics and work rules violated (who, what, when, where and why).
- A. Who is involved: The worker or workers, the steward, the supervisor?
- B. What happened to the worker: What failed to happen?
- C. Where did the occurrence take place: Department, section, etc.?
- D. When did it occur: Date, shift, time of day?
- 3. Make a contemporaneous written record of all verbal warnings regarding misconduct, tardiness, absenteeism, etc.
- 4. Keep a copy of all written warnings and have the employee acknowledge, in writing, a receipt of the warning.
- 5. Record co-workers' complaints regarding misconduct, absenteeism, tardiness or inadequate job performance, and have the co-worker acknowledge the complaint in writing.
- 6. Publicize the written work guidelines listing conduct resulting in possible discipline or discharge, have each employee sign a statement acknowledging that the employee has received, read and understands these rules and make it a part of the employee's permanent personnel file.
- 7. Have two supervisors present at exit interviews or issuance of serious warnings or suggestions. (Specifically record any admissions made by the employee regarding misconduct or any admissions made regarding voluntary termination).
- 8. Require employees voluntarily terminating employment to submit a letter of resignation. (Prepare the letter for the employee. If necessary, have him/her sign it and make it part of the personnel file).
Exit Interviews
When it becomes necessary to terminate an employee, or if an employee chooses to resign, the employer should consider conducting a formal exit interview. This is a good way to find out if there are problems in the workplace that need to be addressed. It is also an opportunity to find out additional information on the following subjects, all of which are valuable to any employer:
- 1. Did the employee's supervisor handle employee complaints fairly, timely and consistently? Ask for suggestions for improvement.
- 2. Are the Company's pay and benefits competitive? (Often an employee will indicate if he or she is leaving because of substandard compensation.)
- 3. If the employee is angry with a supervisor, co-employee or the Company, the employer can be alerted to take steps to avoid possible future problems or violence. Assess an employee's attitude; get admissions; have the employee sign an exit interview form stating why they are leaving. Be accurate.
Conclusion
Discipline in the workplace does not have to carry a negative connotation. The application of constructive discipline is a positive approach. It begins with the realization that the employer cannot change the employee's conduct -- only the employee can. Clear guidelines and policies that are well communicated to employees and consistently applied will minimize the potential for legal claims against the employer. They will also demonstrate that the procedures are necessary for company to achieve its goal of a cohesive staff that works together to meet customer needs.
If you have any questions, email educational services, or call (414) 423-1330.
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