The Seven Steps of Employee Discipline

Remember what our parents taught us when we were kids? Things like, “Don’t run with the scissors!” And my personal favorite, “think before you do something stupid!”

What all this wisdom amounts to is very simple: Be patient, deliberate and act cautiously. This is true not only for kids, but also for business owners, especially when they are dealing with their employees.

How many times has one of your employees said or done something and you immediately wanted to say, “You’re fired!” The principles we learned in our youth translate into rules of personnel prudence, such as the “24-hour rule,” or “delay or pay.”

Before disciplining employees, employers would be prudent to ask themselves the questions that follow. A “no” answer to even one of the questions should cause an employer to pause and reflect. This is true for both union and non-union work settings and for contract and at-will employees.

Before you discipline or discharge one of your employees, make sure that you can give an affirmative answer to each of the questions that follow:

1. Did you give the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of his/her conduct?

Did you give your employee notice that if they engaged in certain conduct or failed to meet certain performance expectations, there would be negative consequences? Was this clear and understood by the employee?

2. Was your rule or managerial order reasonably related to (a) the orderly, efficient and safe operation of your business, and (b) the performance that you might properly expect of the employee?

While it is reasonable to expect that an employee will show up to work on time, it is not necessarily reasonable to dictate how they will spend their time when they are not at work. Nor would it be reasonable to further the employer’s business in a manner that is clearly inconsistent with state or federal law.

3. Did you, before administering discipline to the employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management?

Did you make sure that the employee was guilty as charged? Or did you rush to judgment and assume that the employee was guilty? Most judges want to make sure that an employer investigated wrongdoing before it disciplined an employee.

4. Was your investigation conducted fairly and objectively?

Do you have a paper trail, including evaluations, warnings and reprimands? Was the employee given an opportunity to present his side of the story? Was the investigator an impartial individual, without a stake in the outcome of the investigation?

5. At the investigation, did the employer obtain substantial evidence or proof that the employee was guilty as charged?

Do you have proof of guilt? Or are you operating on surmise and suspicion? Is the decision to discharge based on facts, not inference, suspicion or emotion?

6. Have you applied your work rules, orders and penalties evenhandedly and without discrimination to all employees?

Will this employee’s discipline or discharge be consistent with past enforcement of your work rule? Will you be able to justify this employee’s treatment if discrimination is claimed? Have different supervisors treated employees inconsistently creating confusion as to the meaning or application of the work rule or order?

7. Was the degree of discipline administered reasonably related to (a) the seriousness of the employee’s proven offense, and (b) the record of the employee in his/her service to your company?

Does the punishment fit the crime? Is the discipline you are considering commensurate with the seriousness of the offense? Does the employee’s length of service or clean disciplinary record warrant a lesser penalty?

Unlike other gems of parental wisdom, the expression “because I said so” simply does not cut it in the workplace when an employer needs to discipline or discharge an employee. Rather, a thoughtful “don’t run with the scissors” approach will be much more likely to produce a lasting and effective correction of employee behavior.

Karen Bush-Schneider is a shareholder with White, Schneider, Young & Chiodini, PC, a law firm specializing in employment and benefits law.








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