Making discipline stick

Virtually every employer will need to discipline employees from time to time. The reasons for discipline vary. It may be for poor performance, or it may be for a rule violation. It may even be simply to send a message about behavior or actions the employer wants to curtail or discourage. Whatever the reason, for discipline to serve its purpose and, more important, for you to avoid the legal pitfalls that can accompany improper or sloppy disciplinary actions, it is critical discipline be administered and documented properly.

Why be concerned?

Many employers view discipline as their prerogative. And discipline often is seen as warranted "punishment" for something an employee did or failed to do. Missing from this line of thinking is the reality that disciplinary action exists not merely to punish but to change employee behavior or reinforce work rules and standards of conduct.

Disciplinary action also provides a useful measure of proof against claims of discrimination or unfair or unlawful treatment. For example, let's say you terminate an employee for violating the company's attendance policy. The employee may claim he didn't know the policy existed or didn't appreciate the fact his latest absence could result in termination. He may claim the real reason for his termination was because of his race or age or because he recently complained about an allegedly unlawful practice within the workplace.

But if you had taken the time to properly discipline the employee before termination (recorded his past violations of the attendance policy, provided specific instruction as to what he needed to do to improve and expressly warned he would be terminated if another absence accrued), the odds of the employee succeeding on his claim would be diminished greatly.

Similarly, an employee in a union shop may claim he was improperly terminated in violation of the collective-bargaining agreement because he did not receive the progressive discipline accorded him by that document. If the employer has scant, if any, record of the discipline previously given or the discipline is vague in its terms and expectations, the employee may get a pass on the misconduct and be reinstated by the arbitrator (or other fact-finder) hearing the claim. If, by contrast, the employer has good documentation of prior disciplinary action and can weave that prior action into a package of discipline that satisfies the progressive discipline requirements of the particular case, the employee likely would not succeed on his challenge.

Therefore, whether managing at-will employees or employees employed under some type of employment agreement (be it a collective-bargaining agreement or otherwise), you must take care to properly effect and document discipline. This can be done by following a few simple rules.

What should be documented?

Good documentation of misconduct or poor performance involves good communication between you and your employees that is not riddled with subjective, general statements. The contents of good documentation can be broken down into four parts: facts, objectives, solutions and action.

Facts are your recordings of what happened and are key to effective discipline. Facts include a supervisor's or manager's statement of the employee's behavior, whether the employee has been counseled about such behavior in the past, the effect or outcome of the employee's behavior, witnesses' statements or observations, and the employee's response when confronted.

Supervisor statements concerning employee behavior should provide an accurate, objective assessment of the behavior and answer the basic "who, what, when and where" questions to illustrate how the employee has not lived up to expectations.

For example, a supervisor's documentation of misconduct might include the following detailed statement, "On Friday at 5:15 p.m., at the end of your shift, I saw you take the toolbox from the company truck at the job site, put it into your car and leave," rather than the simple conclusion, "You stole company property."

Good documentation also should describe the effects of employee behavior, such as, "Your failure to put together the proposal on time resulted in our loss of a $50,000 job," rather than "You did not do your work in a timely manner."

The goal is to objectify subjective assessments with specific facts rather than general conclusions. Any previous counseling or discipline for similar behavior should be described, as well, to document progressive disciplinary action that demonstrates fairness on your part and notice to the employee that the behavior is unacceptable.

In addition, good documentation should include third-party witness observations because they tend to be more credible than those of the problem employee or supervisor. The observations should be in writing; signed by the witness; and supported by objective records, such as computer records, time cards and photographs.

Finally, confront the employee, obtain the employee's version of the events in writing and ask the employee to sign his statement to commit him to a story that will be difficult to change later. Obtaining a statement from an employee before disciplinary decisions are made also shows evenhandedness on your part.

The objectives portion of documentation consists of keeping employees informed of your expectations. What do you expect? How should a problem employee change his behavior to comply or succeed? Give such employees specific goals relating to their past failings or violations.

For example, rather than simply telling an employee he needs to improve the quality of his work, set specific goals and timelines with him. With that level of specificity, the employee cannot argue he did not know what was expected of him. The expectation clearly is defined for the employee (and any judge or fact-finder) to see.

Good documentation provides employees with solutions to help change the behavior in question. The solution aspect to discipline goes beyond stating the problem and expectation and gives an employee guidance as to how to solve the problem.

Proper documentation might offer a training solution, such as, "On the next assignment, I will work with you to generate the sales report so you can learn how to do it properly" or "You need to work more quickly. I will ask José to help you on the next job to increase your speed and teach you some additional skills."

Offering a solution helps eliminate suspicion that you are out to fire the employee. It improves your credibility with the employee and, again, with any judge, jury, arbitrator or other fact-finder who may later review the situation.

Good documentation also should state what the consequences will be if the employee does not modify his behavior or improve performance. Specify what action you will take if the misconduct or poor performance continues.

These action statements should be blunt and to the point.

Consider the following examples:

• "If you are late or have an unexcused absence during the next 30 days, you will be suspended for one day without pay. Any further such absence or tardiness will result in termination."
• "If I see you on a job site again not wearing steel-toed boots, you will be terminated."
• "If you do not submit the schedules for your crew by the Friday of the workweek before the schedule becomes effective, you will be demoted."

Explaining in advance the next step in discipline serves to establish the employee's awareness of the severity of his behavior and makes it difficult to later claim he was terminated or disciplined for some unlawful reason.

Violating company rules

When discipline relates to a violation of company rules, in addition to setting forth the facts, objectives, solutions and actions outlined earlier, good documentation of a work rule violation will include documentation of the rule. The documentation should include:

• A statement of the specific rule that was violated
• A citation to where that rule can be found (if in written or other express form)
• A statement as to how the employee knew about the rule or should have known about the rule
• The specific facts establishing that the rule was violated

When issuing discipline for a work rule violation, consider whether the rule has been consistently enforced. If there has been some inconsistency, documentation also should include appropriate support (whether mitigating or exacerbating circumstances) for the leniency or severity of the discipline at issue.

As an aside, long before an individual disciplinary action is taken, you can improve your ability to enforce rules and properly discipline work rule violations by reviewing the rules and past enforcement. The goal is to eliminate vague or overly general work rules and unify enforcement.

Some employers believe having vague work rules will provide them with flexibility in meting out discipline. Although no set of work rules can anticipate every infraction that might occur, you should do your best to specify what behavior would violate a rule by incorporating nonexhaustive lists of behavior that would violate each rule.

For example, many employers have a general rule prohibiting "horseplay" in the workplace. However, most rules do not contain a definition of what constitutes horseplay, and though most rational people can tell you what horseplay is, there may be conduct that falls within a gray area.

For instance, consider whether a rule prohibiting horseplay would apply to an incident where one employee, as a joke, leaves a voicemail message for a co-worker that there is an angry customer waiting for him at the front desk. The co-worker uneasily goes to the front desk to discover no one is there. Has the employee who left the voicemail message violated the "no horseplay" rule? A vague rule makes it easier for the employee to assert his conduct did not fall within the scope of the rule and claim discipline is a pretext for the employer's wrongful or unlawful motives.

You should review your rules with an eye toward the discipline that may be issued. Consider whether potential concerns exist—similar to the "horseplay" example—and take action to tighten the language and specificity of those rules.

It is equally important to train managers and supervisors to enforce all rules consistently on all shifts and in every department. Be sure employees are being treated the same regardless of when or for whom they work (setting aside, of course, alterations that are justified by the job or shift in question).

Consider, for example, a rule prohibiting sleeping on the jobsomething most employers have or would enforce. Putting aside the employee who purposefully hides to sleep while on the clock, what does "on the job" mean? Is an employee who is groggy while at his work station sleeping on the job? What about an employee who openly is fighting sleep? Now, consider what happens if a supervisor in one department or on one shift takes pity on the groggy employee and taps him on the shoulder to wake him, offers him coffee or tells him to go splash cold water on his face, but a supervisor on another shift or in another department strictly enforces the "no sleeping" rule by disciplining the groggy employee without warning. Neither supervisor's interpretation or application of the rule is incorrect, yet their disparate enforcement of the rule can cause problems for when employees discover the supervisors and managers are not uniform in their enforcement of the rule.

Regular review of work rules with supervisors and guidance about how to interpret and enforce those rules will minimize claims of favoritism and other disparate treatment. Watch for inconsistencies as discipline is reported, and speak with supervisors about maintaining standards and consistency, stepping in as necessary to even out any disparate treatment.

Discipline checklist

When assessing whether to discipline an employee, it often helps to run through a checklist of considerations that correlate to the types of factors a decision maker (be it a judge, jury, arbitrator or other fact-finder) might weigh in deciding whether to uphold the discipline in question. In each case, you should consider the following:

1. Is the employee being disciplined for violating a published rule or known standard? If not, how did the employee know what was expected of him?
2. If the decision is based on poor performance, was the employee provided with adequate notice of the expectations?
3. Have you disciplined other employees who have engaged in similar misconduct or had similar instances of poor performance? Are there any circumstances that would demand more severe or more lenient treatment?
4. Have you documented all rule violations (or performance deficiencies) by this and other employees? If not, how will you show discipline was warranted in the current case?
5. Were the incidents that triggered the discipline fully and fairly investigated? Has the employee had a full opportunity to explain his side of the story, and did you listen?
6. Are there any mitigating factors you should consider to show the decision maker that you have considered all extenuating circumstances?
7. Are there credible witnesses? Is there any other evidence that should be gathered to support or consider as part of the decision?
8. Is the discipline commensurate with the violation or performance deficiency?
9. Can the decision maker articulate the reason for the discipline clearly, accurately and concisely?

Although you need not have an airtight case in every situation, you should feel comfortable with the decision at hand and confident you can either satisfy or adequately explain each of the aforementioned factors and considerations.

Go slowly

Although you must discipline employees, take the time in each situation to properly investigate and document the disciplinary action before issuing it. This will go a long way to avoiding legal challenges and making discipline stick.

Victoria L. Donati and Jason C. Kim are partners in the employment law group with the Chicago-based law firm Neal, Gerber & Eisenberg LLP.

Watch for Weingarten rights

When collecting a statement from a problem employee who is represented by a union, be mindful of the employee's Weingarten rights, which entitle him to union representation during an investigatory interview that may lead to discipline.

When a supervisor or manager wants to question a union employee about a matter that could lead to discipline, you need not offer the employee the right to be accompanied by a union representative, but if the employee requests representation, he cannot be disciplined for making the request or refusing to participate in the interview without the presence of the union representative.

Once an employee makes such a request, you have several options: You can grant the request and allow the representation; you can assure the employee no discipline will result from the interview, thereby eliminating the need for representation; if discipline is possible, you can deny the employee's request, forego the interview and make a disciplinary decision based on other available information; or you can inform the employee you are denying the request for representation. In this case, the employee can elect to proceed with the interview without representation or forego the interview (and any opportunity to present you with information that might influence your decision).

Under current law, Weingarten rights do not extend to employees in open shop workplaces, so open shop employees are not entitled to the presence of a co-worker during investigatory interviews that may result in discipline. However, this law has changed often during the years; if your employees are not currently represented by a union, consult legal counsel periodically to ensure the law has not changed once again.