By Michael J. Soltis
Attorney in the Stamford office of Jackson, Lewis, Schnitzler & Krupman
This CBIA article is intended to provide general information only. It is not intended as legal advice or as a solution to an individual problem. You are encouraged to consult with appropriate legal counsel prior to relying on this document in whole or in part.
“All happy families are alike. All unhappy families are unhappy for different reasons.” So said Leo Tolstoy in the prologue to the novel Anna Karenina. The same can be said for well-run companies. These companies tend to have effective discipline systems, usually for the same reasons.
In my experience, the disciplinary procedures of soundly run companies all share certain characteristics that make the discipline carried on at the companies truly effective. I call these the Ten Commandments of effective discipline.
The First Commandment: Discipline Shall Be Centralized
In a larger company, all discipline at some point is channeled through the employee relations office. In a small plant, all discipline is channeled through the personnel office.
At a facility where there is no specialized employee relations or personnel function, a central figure such as a general manager or a controller acts as the conduit through whom all disciplinary actions are processed.
Although disciplinary action, particularly in the case of less serious offenses, generally is taken at the lowest level of supervision, centralization ensures a certain amount of uniformity throughout a facility or an entire company. If discipline is to be effective, it must be uniform.
The Second Commandment: Discipline Decisions Shall Be Reviewed Before Being Implemented
The one exception to this may be verbal warnings. In all other cases, however, either a second-line supervisor or a staff person, such as a personnel manager, should review proposed disciplinary action.
Not only does this assure uniformity, it also ensures a certain amount of fairness and tends to minimize the arbitrariness that can creep into discipline systems.
The Third Commandment: The Employer Shall Notify Employees of Conduct that May Result in Discipline
The government posts the speed limit to give fair notice to all drivers of the conduct that is prohibited.
Employers should provide fair notice as well. For example, companies sometimes post or publish work rules that, if violated, may lead to disciplinary action.
Is it necessary to publish every incident that may result in discipline? Of course not; that would be virtually impossible to do.
List as much as you can and, reserving the company’s right to discipline for conduct not listed, apply a rule of common sense.
That way, your employees will be unable to claim that they did not have sufficient notice when you discipline them.
The Fourth Commandment: The Employer Shall Provide Industrial Due Process
“Due process” may be defined as giving an employee the specifics of the charges against him or her and providing that employee with an opportunity to respond to those charges.
For a written warning, the employee may want to write a rebuttal statement. In the case of a more serious disciplinary action, such as a discharge, you might allow the employee to explain him- or herself prior to implementing the discipline.
You might even interview witnesses suggested by the employee.
Although no law requires due process in the private sector, courts and reviewing agencies tend to give credence to discipline that incorporates due-process principles, as opposed to discipline that may appear arbitrary.
The Fifth Commandment: Discipline Shall Be Progressive, At Least Most of the Time
Progressive discipline systems generally involve a three- or four-step approach before an employer terminates an employee.
Such a system is based on the presumption that employees, by nature, do not wish to engage in misconduct and, if allowed a chance, will correct their behavior. Of course, some employees respond to progressive discipline, while others do not.
Progressive discipline systems vary. Sometimes two written warnings are used rather than a suspension. In other cases, written warnings are used instead of verbal warnings.
Some employers use a progression for similar or related offenses. Others use the same progression regardless of the nature of the offense. Some employers have one progression for attendance-related violations and another for all others.
A progressive discipline system inherently involves due process, since by the very nature of the system, employees are warned prior to the implementation of more serious disciplinary action.
In cases where there has been a genuine misunderstanding or a lack of knowledge on an employee’s part, a progressive discipline system gives employees the chance to correct their behavior.
Often, a progressive discipline system involves the elimination of less serious offenses or, sometimes, all records of discipline within a certain period of time, such as one year.
This lets employees who made a mistake early in their career avoid having to carry the burden of that mistake throughout their employment.
The Sixth Commandment: The Employer Shall Document Discipline
The documentation should consist of documents relating to prior discipline (the progressive discipline) as well as to the current discipline.
Performance evaluations should be consistent with the disciplinary documentation. Depending on the circumstances, the documentation may include notes or statements from witness interviews.
A note on the substance of written warnings: I prefer that each written disciplinary notice tell “the whole story” the past, the present and the future.
The “past” includes a recitation of prior discipline in the progressive line; the “present” describes what occurred in this incident and the level of discipline being given; the “future” is a warning about what the next level of discipline will be if further discipline becomes warranted.
Concerning future expectations, many employers have their own jargon to explain what is expected.
I prefer “immediate and lasting (or sustained) improvement” because it covers the present and continues indefinitely.
An employee who “gets his act together” for the short term, but then falls off again, has not made “lasting” improvement.
The Seventh Commandment: Discipline Shall Be Fair
What’s more, to earn the respect of the employees, it must be perceived to be fair. The penalty must fit the crime, so to speak. Often, companies divide offenses into “felonies” and “misdemeanors.”
Felonies are those serious offenses for which employees can be discharged immediately, while misdemeanors are all other offenses.
“Fairness” involves considering many of the same factors that are considered in determining whether there has been industrial due process. These include:
(1) the need for corrective action; (2) the past record of the employee, as well as whatever “punishments” the employee may be receiving, such as peer pressure, criminal prosecution, etc.; (3) the employee’s length of service; (4) whether the employee knew his conduct could lead to discipline; and (5) whether management contributed to the misconduct in which the employee engaged and thus was partly at fault.
The Eighth Commandment: A Thorough Investigation Shall Precede the Decision to Discipline
Firing “on the spot” is generally inappropriate.
Sending an employee home to allow for an investigation to take place is a much preferred approach.
The decision to discipline should come after a thorough investigation.
Conducting an investigation is an art. The nature and extent of any investigation must be defined by the circumstances.
The Ninth Commandment: Discipline Shall Be Consistent
Absent mitigating circumstances, all employees should be treated alike when it comes to discipline. Although it is necessary to judge each situation on a case-by-case basis, arbitrariness in the administration of discipline can make an entire disciplinary system totally ineffective. It also enhances the likelihood that discipline will lead to a discrimination claim if the employee treated more harshly than others is a member of a protected class.
The Tenth Commandment: A Disciplinary System Shall Be Flexible
Each and every case must be judged on its own merits.
I am not suggesting that we abdicate the Ninth Commandment. Rather, some situations call for the exercise of discretion.
For example, assume a company has a well-publicized written rule that an employee who either punches another’s time clock or has his time clock punched is subject to immediate discharge.
One day a manager discovers that, for years, employees have taken turns punching in all other employees in that department.
If the company’s discipline system were inflexible, every employee in the department would have to be terminated.
Obviously, since there was no fraud intended, such a result would be contrary to what the company hoped to achieve by promulgating its time-card rule in the first place and would lead to an absurd result.
If there were 11 commandments, the Eleventh Commandment would be to train supervisors on the proper administration of discipline.
Disciplining employees is not something that everyone knows how to do.
An employer cannot assume that supervisors, because they are supervisors, know how to discipline. Discipline—discharge, in particular—leads to more employment litigation than any other employment action.
Employers should train their supervisors so that they can use the tool of discipline effectively.