White Paper published by The HR Specialist
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The most reliable way to protect your organization from wrongful termination charges is to establish and enforce a system of progressive discipline. Having such a structure in place, and making it clear to all supervisors that they are expected to abide by it, is your best defense against a wrongful-dismissal suit. It allows you to ensure that any employee fired because of inferior performance was treated fairly and in accordance with your company’s policies.
Following is a five-step model approach for progressive discipline:
1. Oral reprimand. As soon as a supervisor perceives a worker’s performance problem, she should issue an oral reprimand. The supervisor should ask the worker if there are any long-term problems or skill deficiencies that need to be corrected. Have the manager keep detailed notes or prepare a memo to file about the conversation, in case further action is necessary.
2. Written warning. If the problem persists (or more problems emerge), the supervisor should provide the employee with a written warning detailing the objectionable behavior, along with the consequences. Explain the standards that will be used to judge the employee. Specify the time frame within which performance must improve, and state that continued failure will result in termination. A copy of the memo should be placed in the employee’s personnel file. Have the worker in question sign a copy to acknowledge receipt. Otherwise, he could claim that he never received a copy.
3. Final written warning. If performance does not improve, deliver a final written warning, perhaps accompanied by probationary status for the employee. The final warning should contain copies of the previous warnings, indicate specific areas in which the employee must improve and specify the time period within which the worker’s behavior or performance must be corrected.
4. Termination review. If the problem persists, the supervisor should notify the human resources department or other company authority. In general, supervisors should not be given firing authority. Someone else in the company should evaluate the full range of discharge-related considerations. Some companies suspend the employee while his performance is investigated by a human resources manager or other company official (other than the worker’s supervisor). Witnesses are interviewed, and documents are analyzed. The employee is confronted with the facts revealed by the investigation and is given the opportunity to present his side of the story. Regardless of whether there is a formal investigation, before taking any final action, your company should consider these questions:
- Does the employee claim that a contractual relationship exists, and if so, does that assertion have merit?
- Has the employee recently filed a workers’ compensation claim, complained to a government agency about alleged workplace violations or taken any other actions that might make a discharge look like unlawful retaliation by the employer?
- Is there an issue relating to good faith and fair dealing, especially if the termination involves a long-term employee?
Even if the answer to any of these questions is “Yes,” you still can survive a challenge to a firing. But you must be able to prove that the circumstances of the particular case justify your actions.
5. Termination. Assuming that you decide to support the recommendation of the worker’s supervisor, send a letter of termination to the worker and clearly state the reasons for dismissal.
Admittedly, this is a time-consuming process. When a worker is not performing his job satisfactorily, you don’t want to have him on the staff any longer than necessary. But if you dismiss a worker and he can prove in court that he was treated unfairly, you could be forced to pay a large settlement or reinstate him.
How to Discipline With Confidence
Before you write up an employee
Most employee lawsuits stem from employees’ perceptions that they got a raw deal. So before you discipline an employee in writing, ask yourself these questions:
- Does the punishment fit the crime? Sending someone home without pay for being 10 minutes late is excessive, unless the tardiness is a repeated violation and the employee has been told that repeated incidents could end in dismissal. Document all violations.
- Did you discuss it first? Talk over the problem before you commit it to writing; it may help you draw a more accurate conclusion.
- Are the facts clear? If everyone agrees on the events in question and you have proof that what happened violated company rules, your case is ironclad. But don’t make a final decision to put it in writing until all ambiguities are gone.
- Are you acting consistently? Review the discipline handed out over the past year. How does what happened then compare with the current situation?
How to document employee discipline
Be careful—how you document the problem can cause problems if an employee files a lawsuit. To protect yourself and the organization, follow these guidelines:
- Be consistent. Don’t write up one person for a behavior that you ignore in other employees. When in doubt, check to see how similar problems have been documented in the past.
- Be specific. Example of poor documentation: “Employee was late three times in the past month.” Better: “Employee was 30 minutes late on Feb. 5; reason given: traffic. Employee was 45 minutes late on Feb. 9; reason given: overslept. Employee was an hour late on Feb. 23; reason given: car problems.”
- Write in a clear, factual manner. Note the policy or procedure that the employee has violated. Date the document exactly.
- Avoid emotional content, including personal impressions (“I think …”), labels (“He’s a whiner …”), adjectives (“very unproductive …”) and drawing conclusions about the reasons for the employee’s behavior. (“It’s probably because of her divorce.”)
- State the consequences if the behavior continues. Example: “If the employee is tardy again this month, he will be fired.”
- Ask the employee to sign and date the document if it’s going into his or her personnel file. If the employee refuses to sign, note that on the document.
- Give employees an opportunity to respond in writing and include the response in their files.
What should you document?
- Excessive tardiness, unexcused absences.
- Incompetent job performance. Cite attempts you make to help the employee improve.
- Failure to comply with policy or with established safety procedures.
- Physical violence, verbal threats.
- Complaints of sexual harassment or discrimination. Include details of your follow-up investigation.
- Proven instances of on-the-job drunkenness or drug use.
- Positive performance. Ironically, failing to document a positive performance can strengthen an employee’s claims of discrimination. A file of all-bad comments may look like a setup.
