In terms of managing employee conduct, a clearly defined and consistent discipline program is truly beneficial to both the employer and employee alike. As a Southern California employer, installing systematic and consistent disciplinary procedures provides you with a road map that will enable you to correct areas in need of improvement, while also providing your employees with clear-cut expectations. Successfully implementing proper disciplinary procedures will also serve to protect you, as an employer, from any subsequent lawsuit that may arise from the employer-employee relationship. With these goals in mind, this article identifies and discusses the following components as they relate to employee discipline:
- issues that must be addressed before administering discipline;
- methods of disciplining, including progressive discipline;
- how to provide employees with an opportunity to respond to discipline, such as a grievance program.
Issues before Disciplining
There are some items we must consider before disciplining an employee, such as ensuring that employees know what is and what is not permitted in the workplace. It is also paramount that managers know how to properly discipline the employees they supervise with fairness, and are knowledgeable on how to investigate allegations of employee wrongdoing.
Workplace Culture and Code of Conduct
Employees must know what is expected of them when they are on the clock; these expectations need to be clearly communicated to them throughout the hiring process, and reiterated by their managers. If this is not properly communicated to the employees, it can lead to a workplace culture of the employees doing as they please without repercussions. When communicating rules to employees they should be:
- Clearly communicated to all employees in writing;
- Compliant with state and federal laws; and
- Consistently and fairly enforced across your workforce.
Here are some examples of rules and the categories they fall into:
- Rules governing day-to-day matters, such as:
- Punctual attendance, repercussions for tardiness, and appropriate workplace clothing.
- Rules defining what is permissible within the culture of the company, including:
- Whether employees may use company phones or computers for personal calls or e-mail.
- Rules governing more serious conduct, such as:
- Drug or alcohol abuse, workplace safety, or sleeping on the job.
- Rules that, if not followed, may lead to immediate suspension and/or discharge:
- Zero-tolerance policy for violence in the workplace; and
- Zero-tolerance policy for conduct endangering coworkers.
Fairly Disciplining All Employees
Employees are much more likely to accept punishment for their actions if they feel they are being treated fairly and equally. An employer who does not hold all its employees equally accountable is fostering a workplace culture that shows favoritism, and could be very detrimental to the company if an employee has felt they have been treated differently. Maintaining consistency and fairness when disciplining your employees can help cover a business from what could otherwise be successful claims of discrimination or adverse employment actions.
Critical to fair and just disciplines are:
- Providing timely notice of the misconduct to the employee.
- Thoroughly investigating the circumstances of the conduct at issue, including interviewing any witnesses, interviewing the employee themselves, and properly documenting the investigation.
- Allowing the employee an opportunity to respond to any allegations against them.
- Making the “punishment fit the crime.” Draconian discipline for a minor infraction is counterproductive, and modest discipline for a serious infraction is not helpful.
- Generally, an employee should have some right to appeal a disciplinary decision to some person above the rank of the one issuing the discipline who was not involved in the initial decision.
Investigating Employee Misconduct
Allegations of employee misconduct or wrongdoing should be carefully investigated. If an employee is accused of misconduct or a rule infraction, the employer should promptly, fairly, and thoroughly conduct an investigation into the matter to make an independent determination of the facts and circumstances surrounding the alleged misconduct. When an employer fails to properly investigate allegations of employee misconduct, the employee may gain a resource to support a claim of discrimination or similar unlawful act.
All employers should have a procedure in place for investigating allegations or employee misconduct. The procedure should be uniform and concise, so that there is no room for interpretation and to ensure the rules will be followed. Managers must know the proper way to thoroughly and correctly investigate the misconduct at hand. The goal is to learn all of the facts surrounding the alleged misconduct and to make an informed decision based only upon the facts gathered.
Over Documentation
All matters involving employee discipline, discharge, injury, or any other circumstance that could give rise to employer liability should be carefully and accurately documented. Months or even years after the incident, when memories have faded, the careful, thorough documentation of events will help refresh recollection and tell the story accurately.
Among the documentation that the employer should gather and retain are:
- Initial complaints, including any complaint forms.
- Witness reports.
- Written materials relevant to the investigation, including e-mails or notes.
- Meetings with the employee at issue.
- The employee’s personnel file, including any previous discipline reports or investigations, and notes relating to any verbal or written warnings.
- Discipline or termination reports.
- Individual notes of supervisors or other management personnel involved.
Suspension Pending Investigation
Employers will often encounter issues where the investigation cannot be concluded in several hours, but instead requires days or even weeks of investigation. Under such circumstances, the employer may elect to suspend the employee if they pose a threat of any kind to other employees or the orderly operation of the business.
For example, if an employee is charged with embezzlement or workplace violence, the employer may wish to remove the employee from the premises pending completion of the investigation. The suspension may be done without pay; however, if the investigation exonerates the employee, the employee should be paid for the days of suspension. If the investigation confirms the misconduct, the suspension without pay should stand.
Using Progressive Discipline
Progressive discipline is a method of discipline that uses graduated steps for dealing with problems related to an employee’s conduct or performance that do not meet clearly defined standards and policies. The ultimate objective of progressive discipline is to help employees correct problematic conduct and resolve performance issues at their earliest stage.
A Progressive Disciplinary Policy should proceed in accordance with the following four steps:
Step 1. Counseling and Verbal Warning
Step 2. Written Warning
Step 3. Suspension and Final Written Warning
Step 4. Recommendation for Termination of Employment
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Step 1. Counseling and Verbal Warning
This is where the discipline process officially starts; it gives a supervisor the opportunity to bring to the attention of the employee the alleged misconduct. The discussion with the employee should cover the nature of the misconduct, and how the alleged misconduct violates company policy. The supervisors or management team are expected to clearly describe expectations and then give steps to the employee to improve his or her performance with the goal of resolving the problem.
Step 2. Written Warning
This is where the term ‘write up’ actually gets its meaning and where formal documentation occurs. A meeting is held with the employee to review any incidents or information about their performance or misconduct. Management will clearly outline the consequences the employee faces if they do not correct the issue at hand. The written warning may also include a statement indicating that the employee may be subject to additional discipline, up to and including termination, if immediate and sustained corrective action is not taken.
Step 3. Suspension and Final Written Warning
Some employees will engage in conduct that may be detrimental to the business, as well as other employees. When this occurs, the employee may need to be removed from the premises while the investigation into the misconduct is occurring. This is referred to as a suspension. Depending on the seriousness of the problem, the employee may need to be suspended without pay in full-day increments consistent with federal, state and local wage and hour employment laws. Pay may be restored to the employee if an investigation of the incident or infraction absolves the employee of wrongdoing.
Step 4. Recommendation for Termination of Employment
The last and most serious step in the progressive discipline process is a recommendation to terminate employment with the employee. Generally, companies will try to progress with discipline by first providing warnings and issuing final written warnings before this step is recommended. However, companies can skip these steps depending on the seriousness of the offense against the company. Employees can be terminated without notice prior notice or disciplinary action. It is best to get recommendation from your legal team before proceeding to this step in the disciplinary process. Behavior that is illegal is not subject to progressive discipline and may result in immediate termination. Such behavior may be reported to local law enforcement authorities. Similarly, theft, substance abuse, intoxication, fighting and other acts of violence at work are also not subject to progressive discipline and may be grounds for immediate termination.
Employee Responses
GRIEVANCE PROCEDURES & PROGRAMS
A grievance procedure allows employees a formal avenue through which to seek a forum and possible redress if the employee thinks he or she has been wronged in some way. These programs often serve a “therapeutic purpose.” Even when an employee does not get the result he or she wishes, having had the opportunity to be heard may help to ease the employee’s frustration or dissatisfaction.
An internal grievance program should have a minimum of two steps and probably no more than three:
Step 1. The employee initiates a grievance with his or her supervisor. If the issue involves the supervisor, an alternative manager should be made available (e.g., the human resources director).
Step 2. If the employee is dissatisfied with the response at the completion of Step 1, the employee should be able to request consideration of the grievance by either the employee’s supervisor’s immediate superior or another person ranking higher than the supervisor.
Step 3. If a third step is included, the grievance might be referred to the level of a regional or divisional human resources or industrial relations director, or to an officer of the company.
It is also important to provide employees an avenue for making positive suggestions or asking questions, whether through a suggestion box or otherwise. The ultimate goal is to create a work environment where employees and their managers view themselves as “us” and all on the same team, rather than an “us and them” dynamic, which inevitably leads to conflict.
How Can Rupal Law Help?
At Corona, California based firm Rupal Law, we not only have attorneys to help you with any of your pre-existing employment matters in Southern California, but an in-house Human Resources department to guide you through the process of installing company policies to help protect you from any future liability.
For an obligation free consultation or first case review, please email us at info@rupallaw.com, or give us a call at (951) 460-0830.
