Labor & Employment Law Articles

Progressive Discipline and Documentation

We repeatedly advise our clients that it is essential to use progressive discipline and to document discipline in order to limit exposure to employment litigation. However, we frequently find that company efforts in this area fall short of what is desirable and results in the company being in a weaker position than necessary when litigation arises. The following are some suggestions for companies who want to maximize the efficacy of their discipline efforts:

1. Written warning letters should be complete. Generally, a warning letter should consist of three parts: (a) describe what happened; (b) explain why the conduct was wrong; (c) what will happen if the conduct or similar conduct happens again. In the description part, the information should state who engaged in the conduct, when did it happen, where it happened and what happened. Sometimes printed warning forms used by some companies do not contain enough space for all this information. In that case, it is necessary to attach pages so that there is sufficient room for all of the above.

2. Warning letters should be legible, in sequence, and dated. Preferably, warning letters should be typed. Some companies like to label warnings "first warning", "second warning", ""final warning", etc. If you do this, make sure that the sequence is correct. Frequently, we have found "first warnings" after "final warnings."

3. The warning letters must be actually given to the affected employee and there should be space for the employee to acknowledge receipt of the warning. If the employee refuses to acknowledge receipt, a witness should be brought in to verify that the employee was given a copy of the warning and refused to sign.

4. Discipline must be progressive. This does not mean that once an employee gets three warnings, you can fire him. Rather, it means that the employee should normally be given a chance to rehabilitate himself and that the punishment should fit the crime. There is no magic number of warnings that an employee must receive before you can terminate him. For egregious offenses such as theft, insubordination, intoxication on the job, fighting, an employee may be able to terminate without any prior warnings. In other cases, especially where long-term employees are involved, a larger number of warnings may be desirable.

5. Discipline must be consistent. Supervisors hate to write up their employees since they do not want to be perceived as "bad guys". However, when they can no longer tolerate an employee’s poor performance, there is often nothing in the file to justify a termination. In that case, some supervisors decide that they will start to write up the employee. That approach will not be successful. If certain behaviors are tolerated and do not result in discipline for other employees, the targeted employee can claim discrimination.

6. Do not condone improper behavior and poor performance. On the one hand, we always recommend that employers provide progressive discipline of their employees and that there be one warning too many rather than one too few. On the other hand, there comes a point where failure to act is as bad as overreacting. If you have kept an employee for numerous years who has poor attendance, numerous infractions and several "final" warnings in his file, you are asking for trouble. This is the employee who is most likely to sue you when you finally get rid of him. It is best to discharge a poor performer as soon as it is prudently feasible.

7. Give accurate evaluations. It is difficult to justify a termination of an employee when that employee’s most recent evaluation is entirely positive.

8. There is little value to an oral warning. The problem with an oral warning is that you can’t prove that it happened. At the very least, an contemporaneous memo to the file about the oral warning should be prepared. However, without a written acknowledgment that it was given to the employee, the employee can deny that it ever happened.

9. Review warning letters prepared by supervisors. It is important that warning letters prepared by immediate supervisors be reviewed by higher management to make sure that they meet the criteria set forth in this article.

It has been our experience that companies that make the effort to follow the guidelines set forth in this article are less likely to face employment litigation and are better able to defend against discrimination charges when they do arise. If you have any questions about this article, please do not hesitate to contact us.