Addressing Employee Discipline Part 2

From: Staffing

Categories for Discipline

Situations that necessitate discipline fall into the following three broad categories and require different approaches, for example:

• Misconduct. Employees are doing something they should not be doing.
• Poor Performance. Employees are not doing something they should be doing.
• Attendance Policy Violations. Employees are unreasonably or excessively absent from the workplace or tardy to the workplace.

Caution: Managers or supervisors should never use a confrontational, blaming approach with an employee who is not performing up to standard.

Misconduct

Examples of misconduct include the following:

• Violation of work rules.
• Sexual harassment.
• Intoxication at the workplace.
• Sleeping on the job.
• Smoking on the job or jobsite.
• Conducting personal business on the job.

Of course, extreme examples include criminal behavior, such as drug dealing, rape, and murder. In every case, the supervisor must act — rather than react — with as much control as possible. However, when someone or something is in danger, a quick reaction is necessary.

Some forms of conduct for which discipline may be necessary include the following:

• Illegal conduct.
• Intentionally false representations on a job application.
• Insubordination.
• Poor interactions with subordinates and/or co-workers.
• Failure to meet new policy standards.

Poor Performance

Poor performance should always be handled with a combination of coaching and progressive discipline. Initially, employees who are not correctly performing their duties should be presumed to be in need of coaching or counseling. Should this approach be ineffective, the employer may begin the progressive discipline. If the employee does not or cannot make the changes necessary for proper performance, the employee may be terminated. The important elements are as follows:

• Treating everyone fairly and consistently.
• Documenting any warnings given.
• Documenting any failure to improve performance.

Absenteeism and Tardiness

A widespread discipline problem for employers is absenteeism and tardiness. Some employers have established programs designed to minimize absenteeism and tardiness. Effective programs must be communicated to employees. Employees must know what the attendance policies are and what attendance records will merit incentives or discipline.

Small employers may find a combination of approaches to be most effective.

Incentives

In some work environments, an attendance policy that rewards good attendance may be a good addition to a penalty system for poor attendance.

The following suggested incentives might improve attendance and punctuality in the workplace:

• Departmental competitions that award a small bonus to the department with the best attendance record for a month or quarter.
• Using an employee’s attendance record as a factor in granting salary increases.
• Offering attendance awards in the form of cash, extra leave, or recognition at a special lunch for employees who meet certain attendance standards.
• Paying for unused sick leave time at the year’s end or upon termination.
• Allowing employees to annually carry over unused sick leave or convert the unused leave to vacation or personal days.

Additionally, some employers use the concept of “personal days.” Each employee receives a number of personal days, rather than sick days, each year. Employees may take personal days at any time, for any reason (with proper notice where possible). This practice may greatly improve employee morale, as the employees are granted more freedom in their workplace decisions.

Discipline

Establishing clear standards for attendance may involve designating steps for discipline, such as the following:

• An employee who is absent or tardy for ______ days within a ______ day period will get a verbal warning.
• An employee who is absent or tardy for ______ days within a ______ day period, after the verbal warning, will receive a written warning.
• An employee who is absent or tardy for ______ days within a ______ day period, after the written warning, will be suspended without pay.
• An employee who is absent or tardy for ______ days within a ______ day period after suspension will be terminated.

Note: Employers should carefully monitor their attendance policy. Adherence to a strict attendance policy may be unlawful if giving an employee time off would be a reasonable accommodation for an employee’s disability under the Americans with Disabilities Act (ADA).

Types of Work Rules

The following is a list of the areas in which many employers have developed work rules. However, every employer should not have rules on all of the listed topics.

Most small employers have written rules on only a few areas that are either important to the organization or chronic problems in the particular workplace, industry, locale, or labor pool from which the employer hires.

Employers should consider creating work rules on the following topics:

• Attendance.
• Punctuality.
• Telephone usage costs.
• Confidential information.
• Visitor rules.
• Access to premises.
• Smoking.
• Moonlighting.
• Off-the-job conduct.
• Personal appearance and dress.
• Employee records.
• Gifts and gratuities.
• Ethical business conduct.
• Customer service.
• Insubordination.
• Poor interactions with subordinates or co-workers.
• Intentional false misrepresentations on a job application or about reasons for absences.
• Sexual harassment.
• Substance abuse.
• Personal use of company equipment.
• Personal phone calls.
• Email policy.
• Privacy policy.
• Reference policy.
• Personal demeanor.
• Safety and health.
• Solicitations and distribution of literature.
• Use of company bulletin boards.
• Theft and fraud.
• Unauthorized overtime.
• Sleeping on the job.
• Fighting.
• Poor job performance.
• Failure to meet new policy standards.

When an employer lists any violations that may lead to discipline or termination, the employer should also add a disclaimer similar to the following:

Listed are some of our work rules. The list includes types of behavior and conduct that the organization considers inappropriate and which could lead to disciplinary action up to and including termination of employment without prior warning. This list should not be viewed as being all-inclusive. Additionally, management reserves the right to impose discipline up to and including termination for other inappropriate or dangerous actions or misconduct.

Violations

An employer should reserve the right to list what actions are in violation of company policy and the appropriate discipline, if any. The following statement should precede the list of violations incurring actions, “Violations of any of the following performance standards may result in disciplinary action or immediate discharge.”

A typical list of actionable violations contains the following:

• Failure or refusal to follow the written or verbal instructions of a supervisor or manager.
• Insubordination.
• Neglecting job duties and responsibilities.
• Engaging in unauthorized personal business during work hours.
• Falsifying or misrepresenting company or employment records.
• Discourtesy or rudeness in dealing with employees, representatives of clients, or prospects.
• Failure to give proper notice when unable to report for or continue work as scheduled.
• Unexcused or excessive absenteeism.
• Abuse of sick leave privileges.
• Theft, abuse, or misuse of company property, materials, or supplies.
• Unauthorized use of company property and equipment, including telephones, copy machines, and mail service.
• Threatening, harassing, or inflicting bodily harm to fellow employees.
• Making false and malicious statements concerning employees or the organization.
• Intentionally discriminating against employees in violation of applicable laws and engaging in harassment of any employee.
• Possession, use, purchase, consumption, transfer, or sale of alcoholic beverages, controlled substances, or illegal drugs at any time during working hours, on company premises, while representing the organization, or reporting to work under the influence of alcohol, controlled substances, or illegal drugs.
• Violating any company policies, rules, regulations, or practices.

Off-Duty Time

A conflict may develop between an employee’s freedom to spend off-duty time free from employer restrictions and the employer’s ability to discipline an employee based on off-duty conduct. Generally, the employer may not regulate an employee’s conduct or actions outside the scope of the workplace.

An employee that is terminated or disciplined for off-duty conduct may successfully assert an invasion of privacy claim based on a theory of unreasonable intrusion into private affairs. To limit exposure to possible liability, employers may consider discipline only when the employee’s off-duty conduct directly interferes with the employer’s business operations and interests and only in the context of consistent and careful application of its rules and policies.

Preventive Measures

All employers will have situations involving employees with poor attitudes, poor work habits, poor job performance, and absenteeism or tardiness. It is essential that an employer appropriately respond to a problematic employee by helping to correct behavior or by engaging in disciplinary procedures.

Supervisors should review employee performance regularly. Whenever problems develop, the supervisor should discuss the problem with the employee as soon as possible and suggest ways of correcting the problem. Discussions should be documented and placed in an employee’s file. Verbal and written warnings should be given to the employee whenever specific problems occur. A progressive discipline procedure should be followed in all cases except serious misconduct.

If unacceptable behavior continues, the supervisor should contact the personnel or human resources department and provide a detailed explanation of the problem. A specific meeting between human resources personnel and the employee should be arranged. At that time the precise aspects of work behavior that are unacceptable should be explained to the employee and the employee should be specifically told, in writing, what action or activity must be corrected. The employee also should be told that failure to comply with these requirements will result in discharge.

Checklist

An employer should customarily follow a basic checklist whenever disciplining or terminating an employee.

Employers should never discipline an employee unless they can answer in the affirmative to all of the following:

• Has the following analysis been applied:
  • The employee knew of the rule or performance standard.
  • The rule or standard is reasonable and that its enforcement would be reasonable under all the circumstances.
  • Review of all relevant materials including employee handbooks, contracts, policy statements, the employee’s disciplinary history, evaluations, and attendance records.
  • All employees or third parties who may know of or were involved in the misconduct have been interviewed.
  • Accurate notes have been taken from all interviews and investigations about who, what, where, when, and why.
  • The employee was confronted about the misconduct.
  • The employee was given a fair opportunity to explain or deny the misconduct.
  • Based upon the interviews, records, and the investigation process the employer has confidence that all the necessary facts (who, what, where, when, why, and how) have been revealed.
  • The proposed disciplinary action has been reviewed to ensure accuracy, consistency, and completeness.
  • The disciplinary action is consistent with how other employees have been disciplined for the same or similar conduct.
  • The disciplinary action is the proper corrective measure under applicable policies and the employee’s disciplinary history.
  • The discipline memo or provided notice is accurate and complete and states the following:
    • Date of violation.
    • Specific rule violated.
    • Number of prior warnings.
    • Detailed description of misconduct.
    • Corrective action and penalty.
    • Date and signature of supervisor.
  • Personnel have approved the proposed disciplinary action.
  • Arrangements for the presence of a reliable management witness if an employer is concerned about how the employee may react.
• During a private conference with the supervisor and employee, has the following been completed:
  • Review of the disciplinary notice/memorandum with the employee.
  • Review of the facts with the employee.
  • Explanation of the following:
    • The employee’s misconduct and why the misconduct is unacceptable.
    • The penalty given.
    • The penalty that will result if the misconduct is repeated.
    • How to improve performance/conduct.
  • If the employee is to be discharged, the supervisor must provide the employee written notice (a copy of which should be kept in the employee’s personnel file) of the effective time and date of the discharge.
• After the disciplinary conference, the supervisor must immediately make the necessary entries in the personnel file and other applicable records.

Note: Although an employer has the right to regulate and monitor workplace conduct, employers should seek an attorney when considering disciplining employees for conduct or social behavior that occurs off the premises and during nonwork time. This is advisable no matter how serious the conduct may be (for instance, arrest, or conviction for sexual offenses or drug possession).

Limitations on Right to Terminate

Employers using disciplinary policies that list cardinal offenses that result in termination may limit their right to terminate for offenses not listed. A 2000 Ninth Circuit Court of Appeals decision also discusses when termination for just cause might not be permitted when an employer uses the list procedure.

In this case, the employer was subject to a collective-bargaining agreement prohibiting termination without a written warning within the previous nine months for the same type of offense. The agreement also listed seven cardinal offenses which allowed immediate termination without first receiving a warning. The employee was terminated for conduct not in the agreement. After an arbitrator ruled for the employer, the Ninth Circuit reversed, holding that if an employee has not committed a cardinal offense and has not received the required warning notice, the employer may not terminate the employee even for just cause. Although in the present case, the cardinal offenses policy was in a collective-bargaining agreement, the same conclusion could be reached based on the same policy in an employee handbook.

Employee Right to Co-Worker or Union Presence During Investigatory

If an employee who is represented by a union reasonably believes that an investigatory interview with the employer might result in disciplinary action, it is unlawful for an employer to deny the employee’s request for a union representative’s presence at the interview. This right of representation during investigatory interviews in a unionized workplace is referred to as the employee’s Weingarten rights. Seeking the assistance of a union representative in a confrontation with an employer is a legitimate exercise of the employee’s right to engage in concerted activity for mutual aid or protection and denying this right, threatening or retaliating against an employee for asserting thisright is a violation of the National Labor Relations Act (NLRA).

Once an employee who is represented by a union asserts the right to union representation during an investigatory interview, the employer may either:

• Grant the request and delay the interview until the union representative arrives and has a chance to speak with the employee
• Deny the request and end the interview immediately.
• Offer the employee the choice of continuing the interview without a union representative or ending the interview.

The employee may not insist on the presence of a fellow employee, who is not a union steward or representative.

The employer must honor an employee’s or union’s request for a particular union representative during the investigative meeting, as long as that representative is reasonably available.

In IBM Corp, 341 NLRB No. 148 (2004), the NLRB declined to extend Weingarten to nonunion employees, reversing a 2000 decision in which it held that employers were required to allow nonunion employees to have another employee present during an investigatory interview. Employers are not required to inform employees of this new right. However, employers should review personnel policies, grievance procedures and work rules to confirm they do not interfere with these employee rights. Employers should train all supervisors and managers to ensure they are prepared and able to process employee requests for representation.