December 15, 2021
Author: Ben Halverson
Organization: Lorman Education Service
In America, the majority of employees are considered employed at will which means, according to the National Conference of State Legislatures, that an "employer can terminate an employee at any time for any reason, except an illegal one, or for no reason without incurring legal liability." The same rules apply to employees who can leave their job "at any time for any or no reason with no adverse legal consequences."
Still, unless the employee is protected by union contracts, contractor agreements, or when against local or state laws, companies and their managers should be vigilant about having a procedure that covers them in the event of employee retaliation against a disciplinary action.
The National Labor Relations Act provides an outline for managers to go by but there can be some grey areas that organizations may not be aware of and any reason for termination that can be considered unlawful (harassment, discrimination, retaliation, etc.) can result in legal action.
Keeping proper, legal documentation of employee write-ups and disciplinary actions should become a critical part of your disciplinary procedures.
Utilize Employee Performance Reports
Keeping a consistent record of employee performance will provide a concrete background on the employee and their work performance over time. In many cases, disciplinary action can be avoided by addressing concerns about performance during a performance review.
For most businesses, a quarterly performance report helps employees build on their strengths and improve their performance weaknesses. Be sure your performance reports include both positive and negative attributes of the employee and make note of key points made during the review.
Use Progressive Disciplinary Action
Aside from blatant disregard for policies and procedures such as illegal activities, negligence, or violence, employers should have a disciplinary policy that provides managers and HR with a clear guideline on which actions to take, when, and how to record these actions. A sample progressive disciplinary policy might include:
A supervisor should discuss any performance or behavioral issue with the employee. These first-offense meetings can include discussion of possible ways to avoid the issue in the future and informing the employee of the policies and procedures they may have either overlooked or were unaware of. An underperforming employee may be lacking the right tools to properly perform their job or need additional training to improve their performance. If you believe this may be the case, discuss possible solutions with the employee and make a concerted effort to provide the necessary tools to help them succeed.
A discussion between the employer and supervisor in which the reason for the meeting and the result of the meeting are clearly documented and put into the employees personnel file.
Written Warning (Write-Up)
Any subsequent offense from the employee, backed up by documentation shared with the HR department.
Final Warning (Write-Up)
If an employee continues to underperform or repeatedly break company policy, a final warning that clearly defines the consequences of another incident should be given to the employee, signed by the supervisor and the employee, and filed with the HR department.
If, after the previous warnings, an employee continues to display unacceptable behavior or poor performance, supervisors should discuss with the HR department the reason(s) behind the termination and complete a Personnel Action Form (PAF) which provides specific details around the termination.
Some organizations may also incorporate a policy of suspension - either with or without pay - for the employee before moving from their final warning to termination.
Regardless, it is important that the disciplinary policy be followed precisely by all supervisors and departments. According to experts, failure to follow company policies is one of six main causes for unlawful termination lawsuits so today's supervisors and managers should be well-trained on the company's disciplinary policies.
For many employees, providing continued learning increases confidence and significantly improve productivity. Supervisors and managers who encourage continuous education can create a workplace environment that improves retention and ultimately their bottom line. If you are ready to increase the abilities of your employees with additional skills and training, contact us today to find out about our professional learning paths.