Employee Discipline and Termination

HR & Safety

I’ve written often about the challenges of owning and/or running a business. It’s not a job for the faint of heart.
Perhaps the greatest challenge revolves around managing a workforce.
It goes almost without saying that employee recruitment and training costs can make turnover a huge expense—and one to be avoided whenever possible.
From time to time, however, it may be necessary to discipline employees and, on rare occasions, termination may be the only reasonable option.
Here are some things to consider when it comes to disciplinary actions and terminations:

  • The purpose of disciplining employees for poor performance or misconduct is to encourage better performance or eliminate bad behavior.
  • While the administration of discipline for poor performance and misconduct must always be consistent and firm, all discipline should be conducted with the intent to help the employee succeed, not fail.
  • Discipline in the form of a written warning and/or suspension is typically employed when counseling and/or performance improvement plans have failed to correct a problem, or when the issue involves a more serious policy violation or act of misconduct—even if a first-time offense.
  • An employee may always be terminated “at-will” (referring to a clause usually entered in employment agreements) for any lawful reason at any time.
  • Typically, for a performance-related issue, termination should occur only if progressive discipline has failed to solve the problem.
  • When the issue involves a more significant violation of company policy or a willful act of misconduct, even if a first-time offense, progressive discipline may not be warranted or recommended.

    All discipline should be conducted with the intent to help the employee succeed, not fail.

  • Discipline or dismissal should rarely be a surprise to the employee, unless imposed for a significant, first-time infraction or misconduct.

Avoid Discipline Difficulties

Managers can run into several pitfalls when attempting to administer disciplinary action in the workplace.
Here are some of the most common:

  • Failing to discipline in a timely manner (“letting things slide”)
  • Failing to thoroughly investigate all the facts, including the employee’s side of the story, before taking disciplinary action

Typically, any investigation will require obtaining signed written statements by the complaining party and any witnesses regarding who, what, where, when, why; gathering and reviewing any audio or video footage of the incident; and gathering and reviewing any relevant documentation pertaining to any prior counseling/disciplinary action.
Never settle for general or conclusory answers; be sure to get the full picture.

  • Failing to respond to a problem in a consistent way; it’s important to respond to similar circumstances in a similar manner
  • Imposing inappropriate penalties, e.g., serious offenses receive little or no penalty, and minor offenses are punished severely; aggravating and mitigating circumstances are not properly weighted
  • Failing to impose discipline in a progressive manner if circumstances appropriately warrant doing so, consistent with company policy or practice
  • Failing to identify and evaluate any recent potentially protected activity or positive performance reviews/bonuses/raises
  • Improperly communicating disciplinary action, including having non-privileged discussions about employee disciplinary issues via email

If written communications occur, stick to just the facts. Do not provide any extraneous personal commentary, opinions, or thoughts.

  • Failing to properly document and keep accurate records of any disciplinary action taken

Author: Miguel Escalera is a partner at the labor and employment law firm Kainen, Escalera & McHale in Hartford.


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