Discipline / Investigations

Include all relevant details in discipline reports

07/26/2018

When you document disciplinary action, make sure you provide enough detail in your report to put the decision in context. You may need them later to show a judge exactly what you were thinking when you made your decision.

Skipping disciplinary step? Document why

07/19/2018

If you have a progressive discipline system that gives poor performers or rule breakers a chance to reform, be sure your policy includes an escape hatch that lets you skip steps when necessary.

Prepare to turn over disciplinary records if employee files a discrimination lawsuit

07/18/2018

When an employee sues for alleged discrimination, he or she is generally entitled to access all relevant employer documents. If you disciplined the employee, chances are you will have to turn over disciplinary records concerning other staff. Don’t expect to keep those records confidential.

When punishing harassment, you may discipline different perpetrators differently

07/14/2018

Employers investigating workplace harassment accusations may wonder if all the alleged perpetrators must be disciplined equally harshly. You do have some discretion in how you mete out punishment. Just make sure you can later justify why one party was less culpable or deserved a lesser punishment than others.

Justify discipline by documenting the reasons at the time you decided to act

06/22/2018

Courts hate to second-guess employers’ disciplinary decisions. If you are sued for discrimination, give judges every reason to believe that your organization isn’t biased. The best way is to detail the surrounding circumstances that gave rise to discipline.

Key to progressive discipline: Implement steps consistently, keep solid documentation

06/19/2018

If you have a progressive disciplinary policy that gives employees a chance to improve when they make mistakes, make sure you use it consistently. It will pay off if you follow your policy, fire an employee and the employee later decides to sue.

How to prep for flood of #MeToo complaints

06/14/2018

In a recent NPR radio interview, Society for Human Resource Management CEO Johnny Taylor reported that #MeToo has created an “HR level of activity like nothing we’ve ever seen.”

Greater experience is a legitimate reason to punish one employee more harshly than another

06/06/2018

Employees who have worked for their employer for a long time can be expected to know the rules and abide by them, while a new employee may not be as aware. That’s a legitimate reason to punish one employee more harshly than another. Just be sure you document the reason for differing punishments.

Explain different discipline for same offense

06/06/2018

If an employee can show that a worker who received more favorable treatment didn’t belong to the same protected classification, he has a potentially viable lawsuit. This is where details matter.

In #MeToo era, accused harassers may seek injunctions to stop internal investigations

06/05/2018

Sexual harassment claims are on the rise, in the wake of the #MeToo social media movement. Some alleged harassers are fighting back, arguing that the accusations do irreparable harm to their reputations. And they’re not just threatening to file lawsuits.