When it comes to addressing bad behavior, poor performance, or code of conduct violations, an employer should have a policy and procedure for employee discipline. But having too rigid of a discipline plan and not following it consistently can lead to lawsuits.
“When you create a rigid set of procedures that don’t allow for discretion, it opens you up to claims of negligence, discrimination, breach of contract, and others if you don’t consistently follow them for each circumstance,” stated Kay Landwehr, a litigation specialist in casualty claims at Brotherhood Mutual.
It’s important to carefully craft a discipline procedure that gives you, as the employer, the ability to apply the action that’s best warranted for the conduct without being overly prescriptive. “The problem is that you can’t account for every situation that will require discipline or corrective action, some of which may include immediate termination,” noted Landwehr. Therefore, having a discipline policy that allows for an appropriate response to the type of policy violation is better than following a set progressive discipline policy.
If your policy lists certain unacceptable behaviors, make sure it also states that the list is not exhaustive. Colleges can get into trouble when they don’t give themselves discretion within their policy, especially for egregious acts.
Discretion is a key element to include in your disciplinary procedures, and it can be as simple as stating some steps that you “can” or “may” consider when addressing performance or discipline issues. “Discretion gives an organization the ability to address issues based on the individual circumstance,” said Landwehr.
Documentation is also an important component of your procedures. Good documentation practices include clear, concise statements regarding employee behavior and expectations, detailed action plans with specific steps that help employees improve, and identified deadlines to achieve the desired outcome. Being able to show that you gave an employee many chances to improve performance or correct behavior can help protect your organization should it become necessary to terminate employment.
While progressive discipline can address many workplace issues, there are legal disagreements about whether a written progressive discipline policy should be included in an employment handbook.
Progressive discipline can lead to claims of negligence, breach of contract, or discrimination if each step is not followed before making the decision to terminate someone. Using the terms “progressive” or “progressive discipline” implies that you’ll rigidly follow each step outlined in your procedures, for example verbal warning, written warning, improvement plan, last chance agreement, and termination.
Because a progressive discipline policy can seriously compromise an organization’s discretion in individual circumstances, it is recommended that a progressive discipline policy not be included in the employee handbook unless the organization intends to faithfully and consistently adhere to the policy.
But if you do have a progressive plan, make sure you include language that does not lock you into following every step in every situation. One example is to add “up to and including termination” in your handbook or consider renaming ‘progressive discipline’ to ‘corrective actions’ that allow your organization to select the appropriate type of discipline for the situation.
Regardless of what you call your discipline plans, it is important that your organization state that the types of discipline outlined in your organization’s handbook are examples of corrective actions that may be used to address violations of policy and that your organization reserves the right to choose any form of discipline that is appropriate to address the situation, up to and including termination.
Providing the necessary flexibility in your procedures means you’re not locked into treating every situation the same way. While an organization should consistently enforce its discipline policy in all circumstances where it’s needed, the outcomes of enforcement may vary depending on the individual circumstances. Having flexibility helps to minimize unintentionally violating the rights of faculty, staff, or contracted workers, which can lead to lawsuits, reputational harm, and potential loss of accreditation.
Many employment-related lawsuits can be traced back to an organization’s employee handbook. Aside from legal issues related to discipline, handbooks can quickly become outdated. “State laws vary, and frequently change, so failing to regularly review and update your handbook can get you into serious trouble,” said Landwehr.
It’s best practice to work with a locally licensed attorney who can help you make sure your policies and procedures follow the laws in your area. Additionally, review and update your procedures every year to ensure they accurately reflect any changes in employment law, enlisting the help of a local attorney, as needed.
Carefully crafting your employment policies and procedures, as well as working with a local attorney, can help minimize the opportunity for costly mistakes.
If you’re in a state with at-will employment, you may think an employee can be fired for any reason. What it really means is that employers can terminate an employee for any legal reason. However, this process can vary based on whether you’re dealing with faculty or staff. For example, a faculty contract or tenure policy may require for-cause termination. However, even with faculty contracts or tenure policies, it is a good idea to state that conduct may result in immediate termination, such as dishonesty, misconduct, violation of morals clause, etc.
Since employment-related claims can be costly, it can be helpful to protect your educational institution with Employment Practices Liability insurance. Consider obtaining a policy that provides for defense costs outside the limits, which preserves the policy's ability to cover potential damages up to its full limits.
[Insert name of your organization] requires all employees to follow policies, procedures, and rules established by the organization, act in a professional manner at all times, and perform their assigned duties in a timely, effective, and competent manner.
When employees perform at an unsatisfactory level, violate an organizational policy, or engage in misconduct, [Insert name of your organization] will provide employees with reasonable opportunities to correct deficiencies, where possible. However, with employees who are at-will, [Insert name of your organization] may decide to terminate an employee at will, at any time, with or without cause and without following any particular system of discipline or warning.
Generally, [Insert name of your organization] management will try to use corrective action that is less severe than terminating an employee. For example, management may use oral counseling, written counseling, suspension with or without pay, probation, or a combination thereof when disciplining an employee.
Sometimes an incident involving an employee may require an investigation. In that instance, the employee may be placed on an investigatory leave to give [Insert name of your organization] leadership an opportunity to review the circumstances related to a potential disciplinary matter. Doing a complete investigation can help leadership to render an appropriate decision on how to handle the matter fairly.
[Insert your organization’s policy on whether investigatory leave is paid or unpaid]. When an employee is on investigatory leave, the leave is typically paid and will not negatively affect an employee’s personnel file until the results and decisions from the investigation are officially made. The final results of the investigation may lead to documentation and other disciplinary action, if warranted, up to and including termination.
Each situation that may require potential discipline will be handled on an individual basis. It will take into consideration the specific facts of the case and the severity of the conduct in question. Furthermore, whenever a discipline issue is formally documented, employees will typically be asked to acknowledge that the employee was given a copy of the document by signing the original. The employee’s signature will acknowledge receipt of the document but will not signify the employee’s agreement with the contents of the document.
(Note: If your organization chooses a progressive discipline policy, include language explaining that deviations from the policy can and will be made and that the list is not exhaustive. Also, if your organization provides for probationary periods, include exclusions stating that the policy doesn’t apply during that time.)
This policy provides employees who violate policies or perform unsatisfactorily an opportunity to correct their behavior. It is designed as a set of guidelines and is included simply to recommend the normal disciplinary actions to be taken. Nothing in this policy limits the right of [name of organization] to diverge from or modify the sequence of actions listed in this policy. Furthermore, these guidelines cannot cover every situation that might require disciplinary action and, therefore, are not an exclusive list of all behaviors that could result in discipline. Nothing in this policy shall affect the at-will status of employees.
Employee misconduct that does not rise to the level of immediate termination will generally be addressed through progressive discipline, consisting of four steps: oral warning, written warning, suspension, and termination.
Oral Warning
An oral warning is generally used to address misconduct that may not be serious as a single incident but could become problematic if a pattern develops. After the manager has discussed the misconduct with the employee, a document prepared by the manager explaining the discussion will be placed in the manager’s file.
Written Warning
A written warning is generally used when a serious incident occurs or when a pattern of misconduct develops. The manager will prepare a written statement addressing the misconduct. The employee will sign the document, acknowledging having received a copy of the warning. The written warning will then be placed in the employee’s personnel file.
Suspension
An employee may be suspended when misconduct previously addressed has not improved or for offenses for which immediate termination may not be appropriate. The suspension should be documented by the manager, signed by the employee, and placed in the employee’s personnel file.
Termination
If progressive discipline fails to improve an employee’s conduct, or if serious misconduct occurs, termination may result.
NOTE: This progressive discipline policy does not apply to employees during their introductory period.
Posted October 2022
The information provided in this article is intended to be helpful, but it does not constitute legal advice and is not a substitute for the advice from a licensed attorney in your area. We strongly encourage you to regularly consult with a local attorney as part of your risk management program.
