The Basics of Progressive Discipline
Discipline is often necessary when an employee knows of a policy or procedure and chooses to ignore it – or fails repeatedly to reach a goal or address a problem. Most employers follow some variation of progressive discipline where an employee is given a series of warnings – each imposing a higher level of discipline – before termination. For example, the employee may be given a verbal warning for a first offense, a written warning if the problem continues, a final written warning and, finally, termination if the problem persists.
Progressive discipline puts employees on notice of the problem, allows them the opportunity to correct the behavior, alerts them to the consequences of not improving, and creates a record of the problem.
Be careful not to draft progressive discipline policies too “air-tight” so that warnings are required in every situation. Some situations do not warrant progressive discipline and may be cause for immediate termination (e.g., violence or stealing). Progressive discipline policies should explain that employees are “at-will” and that the company, if necessary, may deviate from the established procedures.
If followed properly, progressive discipline provides employees fair warning about their behavior before they’re terminated -- and gives you good evidence of the disciplinary problem and your fairness if taken to court. However, to work properly, managers must apply progressive discipline consistently.
The key is to:
- Treat like situations alike
- Keep accurate documentation so you can distinguish the differences
Fairness and consistency matter
Managers can’t create special rules or allowances for certain people. Doing so may be seen as discriminatory by other employees, which can easily destroy morale and lead to a lawsuit.
Managers should apply company rules and policies the same to all “similarly situated” employees. Employees working in the same department for the same supervisor are generally considered “similarly situated.” You have the right to develop different policies for different classifications of workers (e.g., exempt vs. nonexempt, full-time vs. part-time, etc.), but the policies must be enforced consistently within each affected group. As a general rule, managers should enforce rules of conduct and performance standards consistently for everyone under their supervision.
If an exception is warranted by unusual circumstances, the manager should document the reason why. This will help the company explain (or defend) the decision if the inconsistency later surfaces in a legal dispute.
Taking Disciplinary Action
Whenever discipline is necessary, the issue should be documented in a formal “write-up” to be included in the employee’s personnel record. Most companies provide their managers with appropriate forms to document disciplinary action, with names varying from “Counseling Report” to “Notice of Disciplinary Action” depending on company policy and preference.
Whatever type of form you use, it is important to create a thorough and accurate record of the event.
Companies rely on their managers’ documentation (especially disciplinary write-ups) to defend against unemployment compensation claims, discrimination suits and other allegations of wrongful termination.
However, the purpose of documenting discipline is not just to protect yourself against lawsuits but also to help an employee improve and become more valuable to the organization. With the right documentation and communication, you can help your employees correct problems that may be keeping them from performing their best. Accordingly, there are both legal and practical reasons for getting it right.
Every disciplinary write-up should include:
- The facts
- Be as precise and detailed as possible. Include the date, time and location of the problem. Where applicable, include the five W’s (who, what, where, when and witnesses). For example, it’s not enough to simply write that an employee is “excessively tardy.” Instead, the documentation should indicate each date when the employee was tardy, how late he/she was each time, the excuse provided, and other relevant information about each incident.
When describing a performance or disciplinary problem, focus on the incident or the behavior itself – not the person. Don’t comment on personality traits and don’t include opinions about the employee. For example, instead of saying “John is irresponsible,” describe the specific actions or behaviors that led you to form this opinion (e.g., “John lost the keys to the company car;” “John forgot to lock the safe when leaving;” “John missed his deadline for the ABC project;” etc.). In other words, focus on what happened, not how it reflects on the person’s character.
It is important to be accurate when describing the facts. Do not exaggerate or embellish. Avoid using absolutes such as “always” and “never” unless you can substantiate it. For example, do not say that an employee “never turns in his reports on time” if he has turned even one in on time. Similarly, do not indicate that an employee has been told to do something “several times” if in fact he was only told once or twice. Exaggerating, even if done innocently, may harm your credibility if you ever need to testify in an employment decision.
- The specific rule or policy violated
- Identify whether the employee has violated a “rule” or a “performance standard” and specify what it is. Keep in mind that it is always easier to justify a disciplinary action if the rule or performance standard is in writing and properly communicated to employees ahead of time. If there is a written rule or performance standard, summarize it or attach it to the write-up. Written rules or standards do not have to be included in an employee handbook to apply. They may be found in managers’ manuals, email announcements, letters, postings, or any other format. For example, if a sales manager has distributed a memo establishing sales objectives, this would serve as a written standard that should be referenced in a write-up addressing poor sales performance.
- Objectives and expectations for improvement
- Indicate exactly what you expect the employee to do to correct or resolve the problem. Do not express vague expectations such as “do a better job” or “comply with all company rules.” Try to give a specific directive so that the employee understands exactly what is necessary to change. For example, if a write-up addresses poor sales performance, the document should specify exactly how many sales must be achieved within a specific timeframe (or whatever objective method the company uses to measure sales productivity).
If applicable, indicate what you have done or what you agree to do to help the employee meet the established objectives. For example, you may suggest specific tools or resources, such as training, tutorials, webinars, books, Internet resources, reviewing or practicing tasks, or assignment of a helper or mentor.
- Disciplinary action being taken
- Indicate the specific personnel action you are taking as a result of the employee’s non-performance or rule violation. Examples may include: verbal warning, written warning, suspension with or without pay, demotion, decrease in pay, probation or termination.
- Consequences for failing to correct the problem
- A formal write-up should also indicate what action you will take if the employee fails to meet the stated objectives and expectations for improvement. By when must the problem be solved and/or when will you meet with the employee again to discuss? If the employee fails to meet your stated objectives, what will happen? It is usually best to include a statement indicating that “failure to correct the problem within the timeframe indicated may result in further discipline up to and including termination.”
- Signatures and dates
- The manager who prepares the write-up should always sign the document and indicate the date when it was reviewed with the employee. It is also important to have the employee sign and date the document. By having the employee sign the document, you will be able to prove that the issues were indeed addressed so the employee cannot later claim he or she didn’t know about the problem, the relevant standards or rules, the required objectives, or the consequences for continued non-performance.
How to Conduct Disciplinary Meetings
Keep in mind that the goal of the disciplinary process is to help employees improve their performance and meet specific expectations. This can’t happen unless managers are open and candid with employees about their shortcomings. Employees need to know what they are doing wrong in order to improve.
Here are some tips to help you communicate effectively when conducting a disciplinary meeting:
- Be positive. When confronting employees, it helps to maintain a positive attitude and make an effort to give constructive criticism. Remember – the root meaning of “discipline” is to learn – so you’re really helping an employee learn to be a more effective and productive employee.
- Remove emotion. Never discipline an employee in anger. If necessary, step away from the situation and postpone meeting with the employee until your emotions are under control. Take time to consider all the facts and circumstances before making any adverse employment decision or confronting an employee about performance or disciplinary problems; disciplinary decisions should never be made impulsively or hastily.
- Consider having a witness present. If you’re worried about a confrontation or an outburst from the employee, or if you expect a legal dispute, ask another manager or member of human resources to participate in your counseling session. It is especially important to have a witness present if you plan to terminate the employee.
- Let your documentation guide the discussion. Before counseling an employee on a disciplinary issue, you should have prepared documentation outlining the problem in the form of an official “write-up.” This documentation will help guide your discussion during the disciplinary meeting. Make sure you discuss each element with the employee (including the specific policy or standard violated, expectations for improvement, disciplinary actions being taken and the consequences of failing to improve or correct the problem), with as much (or more) detail as provided in the documentation.
- Let the employee respond. Allow the employee to respond, and listen to their side of the story. Give the employee a chance to explain and/or defend their actions, or to “vent.” Allow the employee to make written comments on the disciplinary write-up (or on a separate document) if permitted by company policy.
- Get the employee’s signature. At the conclusion of the disciplinary meeting, present the employee with your formal documentation (or write-up), and them to sign acknowledging that the document was presented and discussed. If an employee refuses to sign, ask another manager to witness that the document was presented to the employee, make a notation on the document stating that the employee refused to sign it, and have the other manager sign attesting to your statement. The original should be filed in the employee’s official personnel record.