Employee Discipline

Despite their best efforts, there are times when employees do not perform up to expectations. This could be due to a family situation that is distracting them, a lack of training, an inability to keep up with the work or a myriad of other reasons. It is unusual for employees to perform poorly on purpose, and this should be kept in mind when you initiate any disciplinary action.

What is progressive discipline and how does it differ from a corrective action program?

A progressive discipline program is one where the penalty increases for continued violation of the rules or poor performance. A corrective action program is similar in that the discipline increases during each step, but in this type of program the focus is more on correcting the behavior rather than punishing for it.

What are the typical steps in a corrective action program?

Generally, there are four steps:

• Verbal warning. As with all corrective actions, this should be given in private away from other staff and interruptions. The employee should be told what they are doing incorrectly and asked how they are going to correct it. A note should be made to the employee's personnel file indicating the date the discussion took place and actions agreed upon.

TIP: Employees who are subject to corrective action should also document when meetings take place and what was discussed.

• Written Warning. This is a second warning to an employee. It is more formal than an oral warning, as it is a formal document that is handed to the employee. Typically it includes the date of the warning, a description of the misconduct, a personal improvement plan (PIP), specific items the employee must improve upon and an open-ended time frame in which to improve, a signature by the manager and a line for the signature of the employee. This signing acknowledges receipt, not necessarily agreement.

TIP: It is beneficial to have another management representative present for this and any subsequent steps to serve as a witness for what is discussed.

• Suspension. Depending on the severity of the offense, this can be from 1 day to 2 weeks. In almost all cases it is unpaid. Along with the suspension should be another written warning. The suspension may include a statement that says "Should there be a repetition of this action, you will be subject to separation from employment."
• Termination. The employee is released.

TIP: In designing your corrective action program, the company should maintain the right to skip any step if the situation so warrants. Then, if there is a serious violation of policy, such as theft, violence or insubordination, the company may terminate the individual immediately.

As an employee, am I entitled to have someone present during a corrective action discussion?

Yes. In what has become the Weingarten Rule, the U.S. Supreme Court ruled that an employee may be represented by the union at an investigatory interview with his supervisor if the employee reasonably believes that the interview may lead to disciplinary action. The National Labor Relations Board has expanded this right to nonunion employees who can request that a coworker be present.

TIP: For this rule to apply, the employee must make a clear request for union representation or to have a fellow coworker present.

Is my employer required to give me a performance review?

There are no federal or state requirements that employers review their employees. However, performance reviews are valuable to both the company and the employee for the following reasons:

• They help set objectives and review accomplishments.
• They can provide a basis for compensation decisions.
• They provide a forum for communication and problem solving.
• They help identify training needs.
• They clarify employees' career aspirations.
• They improve supervisor/subordinate relationships.

TIP: For performance appraisals to be effective, they need to be viewed as fair and equitable. It is important that managers be trained in how to review staff and learn to focus on objective rather than subjective factors of performance.

I just took a new position with a company that has a probationary period. What does this mean?

Many companies have such a practice. In general, for the first 30, 60, or 90 days or 6 months of employment, you are considered on probation. As such, you may not be subject to the progressive discipline program or entitled to certain benefits. The company uses this period to determine if it made the right hiring decision.

TIP: Employers who wish to engage in such a practice are far better off calling this an introductory period. A number of courts have held that when an employee completes probation, she become a permanent employee. This type of ruling can invalidate an employee's "at will" status. By using an introductory period upon completion, an employee becomes a "regular employee and "employment at will" status is maintained.

I am a supervisor with my company and want to date one of my subordinates. My boss said this violates the company dating policy. Is this legal?

There are no federal or state laws that prohibit an employer from establishing a dating policy in the workplace. Dating a subordinate is always a risky proposition due to the potential of sexual harassment. Even if the relationship is initially welcome, if it ends badly, problems can arise. In addition, if a company has a number of supervisors dating subordinates, it may be perceived as the only way to get ahead in the company and create a hostile work environment.

TIP: When drafting a dating policy, make sure that the policy is gender neutral and does not have a discriminatory impact. Policies that require the employee in the lesser job to transfer have often been found to violate sex discrimination statutes.

Can my employer prohibit me from wearing controversial T-shirts or buttons in the workplace?

If the company can show a valid business reason for not allowing the T-shirt, it may do so. These reasons can include not wanting to alienate customers or coworkers, safety or avoiding confrontation. What an employer cannot prohibit in almost all cases is protected activity. Therefore, wearing a T-shirt saying "Vote yes for the union" or a button stating "I am a member of XYZ union" is permissible.

How do I identify employees who may have a substance abuse problem?

Substance abuse issues usually show themselves through a change in the employee's behavior and in a diminishing of performance. Some of the telltale signs include the following:

Performance

• Inconsistent work quality
• Poor concentration
• Lowered productivity
• Increased absenteeism
• Unexplained disappearances from the job site
• Careless mistakes
• Errors in judgment
• Needless risk-taking

Behavioral indicators

• Financial problems
• Avoidance of friends and colleagues
• Blaming others for own problems and shortcomings
• Complaints about problems at home
• Deterioration in personal appearance

Can I require one of my employee's to take a drug test?

You should first have a drug test policy that spells out under what conditions the company may test, usually for cause or following an accident. To ensure that it complies with local regulations, an attorney should review your policy. If the policy is valid, there should be no problem in testing.

What should I do if one of my employees has a substance abuse problem?

It is important to keep your observations job related. Look at performance and document what you see. Next, reaffirm the company's position on substance abuse. Explain the policy and reiterate the company's expectations. Finally, be supportive and help identify resources the employee can turn to if they have a problem. If the company has an Employee Assistance Program, you could suggest that the employee make a call.