MODULE 3 BACKGROUND - EMPLOYMENT-AT-WILL AND PROGRESSIVE DISCIPLINE

4 New York Employment Law • March 2015 www.theHRSpecialist.com

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4 principles for creating a progressive discipline system that works The most reliable way to protect your organization from wrongful termination charges is to establish and enforce a system of progressive discipline.

It allows you to ensure that any employee fired because of inferior performance was treated fairly and in accor- dance with your policies.

No state or federal law requires a company to establish a progressive discipline policy. But if you do promise one, make sure you follow it. Progressively harsher pen- alties are an important part of progressive discipline, but they are only one element of the overall system.

An employee must understand the reason for the pen- alty and be given an opportunity to correct the behavior.

Keep these four principles in mind when launching a new progressive discipline system or evaluating an existing one:

Principle No. 1: Generosity The object of progressive discipline should be to rehabili- tate employees, not punish them. Always ask an employee for the reason behind the problem. Never take it for granted or assume anything. If the problem is correct- able by additional training, specify what steps you and the employee will take to resolve it.

Docu ment everything that is said and done in case the problem persists and you have to go to the next step in the progressive discipline system.

Principle No. 2: Clarity Employees must understand that their behavior violates company rules. Employment law differs from civil law in that employees can use “ignorance of the law” as a defense. In other words, if they didn’t understand the con- sequences of their actions, they may be off the hook—and you could be on it!

To make sure your communications are getting through loud and clear, take these steps:

• Be thorough when you are disciplining employees. State exactly how the policy has been violated. Give clear-cut examples of what is unacceptable about the behavior.

• Set the standards to be met so the employees can’t claim they didn’t know they were doing something wrong. Spell out the consequences if problems continue.

• No matter what the communication situation, try to see it from both sides. Put yourself on the receiving end of your message and see if it makes sense, is com- plete and provides a solution to the problem.

Principle No. 3: Transparency If employees are not warned about the consequences of poor performance, a judge or arbitrator may see it as an in - dication that there hasn’t been any effort at rehabilitation.

Principle No. 4: Fairness Progressive discipline must treat all employees equally. A boss can’t slap one worker on the wrist, then fire another for the same offense.

Progressive discipline must happen in this order Progressive discipline uses five steps, all designed to inform the employee what he or she is doing wrong and providing every opportunity to improve:

1. Oral reprimand for a performance deficiency or behav- ioral infraction, explaining what went wrong and what needs to happen instead .

2. Written warning if the problem persists, detailing the objectionable behavior, along with the consequences .

3. Final written warning, perhaps accompanied by pro- bationary status .

4. Termination review by both HR and the employee’s supervisor .

5. Termination, the final step .

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