September 11, 2007

Just cause for discipline is a requirement in most union-management agreements and civil service laws. However, few, if any, agreements or laws governing employment define the concept or explain what an employer must show to justify meting out any given level of discipline. As a result, definitions have varied and been left to the interpretation of arbitrators and courts. Arbitrators have applied definitions that include proof of misconduct, evenhanded penalties, fact-finding investigations and consideration of individual circumstances. Carroll R. Daugherty, the arbitrator in Enterprise Wire Company and Enterprise Independent Union, more specifically defined the concept by listing seven questions (also referred to as seven tests, standards or criteria) to determine whether an employer had just cause for disciplining an employee. This definition has become a well-known standard in unionized and other environments where just cause is a requirement.

Frequently, where just cause is not a requirement, employers have incorporated the seven questions as considerations (rather than as standards, tests or criteria) for supervision to review when confronted with matters of potential discipline. However, employers in these settings may have reservations about publishing the considerations in communications to all employees, since their publication can potentially be pointed to as a defense in legal or similar contexts. In employment-at-will states, there may be additional concerns that those rights may be eroded if the seven tests or other references to just cause are published in employee handbooks and the like. Based on concerns of this nature, employers in these environments may want to consult with legal counsel in deciding the best course of action.

Regardless of the employment context, management can apply the following seven just cause considerations to better ensure that discipline is administered in an objective, reasonable and consistent manner and to avoid actions that can be viewed as arbitrary, capricious, unreasonable or discriminatory.

1.  Forewarning/Adequate Notice

Did the employer give the employee forewarning of the possible disciplinary consequences of his conduct? 

The warning may be given orally or in printed form, e.g. work rules. An exception may be made for misconduct which is so serious that any employee is expected to know that the behavior will lead to punishment. Examples include insubordination, coming to work drunk, drinking on the job or stealing from the employer or fellow employees.

2.  Reasonable Rule

Was there a legitimate, rational, business-related reason for having the policy, rule, procedure or practice in place?

The policy, rule or procedure that has been violated should be reasonable and have a relationship to the safe, orderly and efficient operation of the organization.

3.  Investigation Prior to Action

Before administering discipline, did the employer investigate to determine whether the employee did in fact violate or disobey a rule or order of management?

An investigation should take place to determine facts before a decision to discipline is made. When immediate action is required, it may be necessary to suspend the employee pending investigation. In such cases, it is understood that the employee will be restored to the job if the investigation discloses that he/she has not engaged in improper conduct.

4.  Fair and Objective Investigation

Was the investigation fair and objective?

A fair and objective investigation requires that the employer act promptly to preserve relevant evidence and enable witnesses to more accurately recall the facts. It also requires an objective investigator who will conduct the fact-finding process with detachment. An investigator who is biased or not completely objective is less likely to collect all of the facts. In addition to being fair and objective, investigations also must be thorough. For example, if there are multiple witnesses to an incident, the investigator should interview everyone who was present at the time of the occurrence.

5.  Substantial Evidence or Proof

Did the investigation produce substantial evidence or proof to show that the employee violated a policy, procedure or the like? 

It is not required that the evidence be preponderant, conclusive or “beyond a reasonable doubt,” although a higher standard is required when the alleged misconduct is of such a criminal or reprehensible nature as to stigmatize the employee and seriously impair his/her chances for future employment.

6.  Evenhanded and Nondiscriminatory Application of the Rules

Were the employer’s rules, orders and penalties applied evenhandedly and without discrimination?

Prior discipline should be reviewed to determine how similarly situated employees have been treated. If enforcement has been lax in the past, management should not suddenly reverse its course and begin to crack down without first warning employees of its intent.

7.  Appropriate Discipline Related to the Offense and the Employee’s Prior Record

Was the degree of discipline reasonably related to the seriousness of the offense and the employee’s prior record of behavior and service?

If the record of employee “A” is significantly better than the record of employee “B,” the employer may appropriately give “A” lighter discipline than “B” for the same offense. However, employers should avoid using the record of previous offenses to determine the employee’s responsibility for an offense under investigation. The only appropriate use of the employee’s past record is to determine the severity of discipline.

This general information should not be construed as advice about individual situations or as a substitute for legal counsel.