Chapter 1

Progressive Discipline and Its Legal Considerations

Documenting poor performance and progressive discipline is as much an

art as it is a science. Unfortunately, most human resources

professionals and line managers don’t have the time to study the nuances

of progressive discipline, workplace due process, summary dismissal,

discharge for cause, and the like. Even when that theory is mastered,

however, there remains the challenge of incorporating all those ideas

into a written memo that adequately documents subpar job performance or

workplace conduct.

So it’s not surprising that many managers avoid writing up employees

like the plague. And without a template to follow and samples to

emulate, it’s no wonder that many managers create memos that cannot

withstand legal scrutiny.

If the objective of any disciplinary system is to create and maintain a

productive and responsive workforce, then disciplinary actions, when

they occur, should focus on rehabilitating employees by deterring them

from repeating past problem behaviors. It is simply a fact of the modern

workplace that you as a manager are charged with this responsibility.

Terminated employees who are successful at winning wrongful discharge

claims, on the other hand, typically can prove that they were denied

“due process”—what we call progressive

discipline. They successfully argue, with the help of

their attorneys, that your company breached its de facto obligation of

“good faith and fair dealing” in managing its employees and in following

its own policies. So if you’ve ever scratched your head about losing a

case to an employee who flagrantly disregarded work responsibilities,

it’s probably because an arbitrator concluded that due process was

denied.

In other words, if the “step formula” outlined in your company’s

progressive discipline policy is violated, or if you fail to properly

notify an employee that her job is in jeopardy, you may end up on the

losing end of a wrongful termination suit. Ditto if you dole out

punishment (i.e., termination) that doesn’t appear to fit the offense.

In such cases, arbitrators will conclude that the misuse of your

managerial discretion warrants the substitution of their judgment for

yours in the handling of a specific worker. Frequently, that results in

a lesser penalty (such as reinstatement plus a written warning instead

of termination).

But what about your rights? Shouldn’t workers be held accountable for

their actions? Don’t you retain any discretion in determining who should

play on your team? After all, whose company is it? Well, don’t despair.

The program outlined in this book is aimed at giving those rights back

to you.

With the help of this system, here is how discharge hearings should play

out in the future: An arbitrator asks a former employee/plaintiff in a

wrongful discharge action, “I see that your former company offered you

an opportunity to take part in an EAP program. Did you contact the EAP?”

The former employee’s flat response is, “No.” The arbitrator then asks,

“I see that you were encouraged to fill out a section of this write-up

regarding your own performance improvement. It’s blank, though. Why is

that?” The apologetic response is, “Well, I guess I didn’t have time.”

The arbitrator continues: “I see. Hmmm. Your company paid to send you to

a one-day off-site training program on conflict resolution in the

workplace. Did you attend that workshop?” The employee responds, “Yes, I

did.” Finally, the arbitrator closes: “So you attended the workshop that

was paid for. Yet you did little else to invest in your own personal

improvement. And you signed a document showing that you agreed that if

you didn’t meet the conditions of the agreement, you would resign or be

terminated regardless of the reasons for your failure. . . . I see no

merit in your argument that you were denied due process or that your

organization failed to make reasonable attempts to rehabilitate you.

This case is dismissed.”

You’ll immediately notice how the burden was shifted to the employee in

terms of proving that he made a good-faith effort to become a better

worker. To make this fundamental paradigm shift occur, however, you have

to provide the employee with resources he can use to improve himself:

coaching and commitment, training, and material resources. And that’s a

win for both sides, since you, the employer, focus on helping your

workers and they, in turn, are charged with accepting your invitations

to improve.

It all begins with due process—your efforts to ensure that the employee

understands what the problem is, what she needs to do correct the

problem, what will happen if she doesn’t, and how much time she has to

demonstrate improvement.

The Elements of Due Process

A legal theory called the “job as property doctrine” states that

employment is a fundamental right of American workers and that the loss

of employment has such a serious impact on a person’s life that

individuals should not lose their jobs without the protection of due

process, as afforded under the Fourteenth Amendment to the Constitution.1

Affording due process means recognizing the employee’s right to be

informed of unsatisfactory performance and to have a chance to defend

himself and improve before an adverse employment action (such as

discharge) is taken.

This “property right” protection places on management an obligation to

deal in good faith with employees and to take corrective action measures

based on just cause (i.e., good reason). This just cause requirement, in

turn, mandates that businesses take corrective action measures only for

clear, compelling, and justifiable reasons.

But what exactly are the elements of due process?

First, the employee must understand your expectations and the

consequences of failing to meet your performance standards. If a

write-up merely documents a performance problem without pointing to the

consequences of failure to improve, the write-up will lack the “teeth”

necessary to meet due process guidelines.

Second, you must be consistent in your application of your own rules.

Workers have the right to consistent and predictable employer responses

when a rule is violated. In other words, problems cannot be corrected on

an ad hoc basis without the employer’s being perceived as arbitrary,

unreasonable, or even discriminatory. Bear in mind as well that,

generally speaking, practice trumps policy. In other words, regardless

of what your handbook or policy and procedure manual says, your past

practices will be scrutinized for consistency.

In addition, failure to follow through on threatened consequences

damages the credibility of your disciplinary system and sets an

unintended precedent: If Employee A, for example, was forgiven for

making certain mistakes, Employees B through Z may arguably have to be

forgiven for making those same or similar errors.

Third, the discipline must be appropriate for the offense. Occasional

poor performance or a minor transgression (known as a de

minimis infraction) is certainly actionable but probably

not cause for termination. An employee’s performance track record and

prior disciplinary history must certainly be taken into account.

Fourth, the employee should be given an opportunity to respond.

Administering discipline without allowing employees to give their side

of the story is begging for trouble. Unfortunately, of all the elements

of due process that should be incorporated into any write-up blueprint,

this self-defense principle is the one that is most often lacking.

Fifth, you need to allow the employee a reasonable period of time to

improve her performance. Otherwise, your disciplinary actions will

appear to be an artificial excuse to get the employee out of the

organization. We’ll talk more about acceptable probationary time frames

in Chapter 4.