February 04, 2016
The bulk of discrimination claims come from the company’s discipline, counseling, and termination processes. During these events, employees receive “bad” news and possibly loss of livelihood. Emotional and economic injury is incurred.
When the employee perceives the action to be unfair, they often seek to settle the score by claiming that their discipline or termination was unlawful. It is imperative that employers approach discipline and terminations thoughtfully and deliberately.
In order to prepare appropriately for a disciplinary action, the following checklist can be helpful:
You should never discipline an employee unless you can answer “yes” to all of the following questions below:
Prior to determining if discipline is appropriate, have you:
- Determined that the employee knew of the rule or performance standard which he or she violated?
- Determined that the rule or standard is reasonable, and that its enforcement would be reasonable under the circumstances?
- Reviewed all relevant materials including employee handbooks, contracts, policy statements, the employee’s disciplinary history, evaluations, and attendance records?
- Interviewed all employees or third parties who may know of or were involved in the misconduct?
- Taken accurate notes from interviews/investigations about who, what, where, when, and why?
- Confronted the employee about the misconduct?
- Given the employee a fair opportunity to explain/deny the misconduct?
- Concluded that you are reasonably confident, based upon your interviews, records, etc., that you know all the necessary facts (who, what, when, where, why, how)?
Prior to disciplining the employee, have you:
- Reviewed the proposed disciplinary action to ensure accuracy, consistency, and completeness?
- Determined that the disciplinary action is consistent with how other employees have been disciplined for the same or similar misconduct?
- Determined that the disciplinary action is the proper corrective measure under applicable policies and the employee’s disciplinary history?
- Checked to make sure that the discipline notice/memo is accurate and complete? Be sure that it includes:
+ the date of the violation
+ the specific rule violated
+ the number of prior warnings
+ a detailed description of misconduct
+ the corrective action/penalty
+ the date and signature of the employee’s supervisor.
- Had the proposed disciplinary action been approved by Human Resources?
- Arranged to have a reliable management witness present if you are concerned about how the employee may react?
During a private conference with the supervisor and the employee:
- Has the supervisor reviewed the disciplinary notice/memorandum with the employee?
- Have you reviewed the facts with the employee and given the employee an opportunity to refute or explain the facts?
- Have you explained:
+ the misconduct?
+ why it is unacceptable?
+ the penalty given?
+ what penalty will result if the misconduct is repeated?
+ how the employee may improve his or her performance/conduct?
- If the employee is to be discharged, has the supervisor given the employee written notice (a copy of which should be kept in the employee’s personnel file) of the effective time and date of discharge?
After the disciplinary conference:
- Has the supervisor immediately made the necessary entries in the personnel file and other applicable records?