Chapter 11:
Managing an Effective Progressive Discipline System

Last reviewed February 2007


The Role of Human Resources

The role of the human resources professional in the modern organization is complex and varied. Human resources professionals today embrace strategic and operational responsibilities, partner with management to enhance organizational performance effectiveness, manage change and control costs. In addition, one of the key duties of the HR professional is to protect the employer from unnecessary liability in the workplace. This can be accomplished, in part, by monitoring conflict situations in the workplace and by effectively managing the employers progressive discipline program.


What Is Progressive Discipline?

Progressive discipline is a systematic approach to resolving a range of problems in the workplace. It is also a communication tool and a system of notices from management to an employee regarding a workplace problem, and its resolution. The primary purpose is either to correct a performance problem, or to punish an employee for a policy violation or misconduct. In addition, progressive discipline can be an effective administrative vehicle to provide a fair method of managing employee productivity. It is also considered as a method of regulating an employer's liability for wrongful discharge allegations.

Progressive discipline indicates a management action taken in response to employee shortfalls. Management dispenses an ever-increasing (progressive) level of discipline for each infraction. In a typical progressive discipline policy, management first issues a verbal warning, then a written warning, a final written notice which may include a suspension, and finally termination of employment. Management should not present these steps as a guarantee to its employees in its employee handbook. The steps of progressive discipline may not be followed in every case. Management should reserve(in its employee handbook) the right to determine when to follow progressive steps of discipline and when to deviate from those steps.


At-Will Employment

Progressive discipline is not used in a vacuum. Employers are advised to draft policies reinforcing the company's at-will status. At-will statement can be incorporated into the progressive discipline policy so that the policy cannot be considered an implied covenant to discharge only for cause. This manual contains a separate discussion of at-will employment.


Performance Evaluations

The relationship between a progressive discipline policy and performance evaluations is significant to an employer's defense against a wrongful discharge suit. In reviewing a potential wrongful discharge case, the human resources professional must review the employee's current performance. Look for conflict or collaboration between performance evaluations and any progressive discipline notices. The degree of consistency between these documents will shed a great deal of light on the strength of the case. When these two documents are inconsistent, the employee may have been given mixed messages about his/her performance. Conflicting statements in the two types of documents can be used by opposing legal counsel to impeach the credibility of management. In addition, if the last several performance evaluations support a very positive evaluation of the employee's performance, the recent poor performance may be considered a deviation from the employees established baseline behavior. If this is so, the employer should devise a performance improvement plan. Offering the employee an opportunity to improve his/her performance is frequently, though not always, in the employer's and the employees' best interests.


Self-Discipline

The use of self-discipline is completely consistent with progressive discipline. Affirming the employee and encouraging him/her to assume responsibility for his/her own performance is at the core of enlightened human resources practices. Ultimately setting and maintaining personal boundaries that produce the desired results is best for both the employee and the employer. With this in mind, seek agreement with the employee that he/she will address the problem and will take ownership for it. When an employee embraces the significance of self-discipline, the need for management imposed progressive discipline becomes less necessary. But within the context of a progressive discipline setting, managers should remind employees subject to progressive discipline that self-discipline is necessary for the employee to follow through on any performance improvement plan.


Grievances and Dispute Resolution

Disciplinary action is frequently the basis of grievances and formal complaints in non-union settings. For this reason formal responses to complaints should be well written and represent management's best thinking in how to effectively resolve the problem. The disciplinary action as well as the grievance that may follow should seek win-win solutions under most circumstances.


The Legal Context

Since California is an "at-will" state, why go through the hassle of progressive discipline? For some employers, progressive discipline is written into the collective bargaining agreement; for others, it is an effective device for promoting fairness in the workplace, and simultaneously avoiding a wrongful discharge case.

While under at-will employment you can discharge for no reason, or a good reason, employers cannot discharge for an illegal reason such as discrimination, harassment or retaliation. One example of this is in the workers' compensation arena. California Labor Code section 132(a) prohibits the termination of an employee for filing a workers' compensation claim. This is a direct limitation of at-will employment. So are all of the federal Title VII causes of action. A recent development affecting progressive discipline is that the NLRB has cease extending the Weingarten rule to non-union conflict cases. In the last few years, the National Labor Relations Board (NLRB) ruled and overruled is own position that non-union employees have a right to a representative in an investigatory interview that could lead to disciplinary action. Since this has changed so much, employers should review this area of law before denying an employee representation during a disciplinary meeting.

In managing employees' compliance to the directives of their supervisors, managers should consider the law of substantial compliance. Labor Code Section 2856 states, "An employee shall substantially comply with all the directions of his employer concerning the service on which he is engaged, except where such obedience is impossible or unlawful, or would impose new and unreasonable burdens upon the employee." Please note that substantial compliance is in contrast to strict compliance. An employee is not legally required to comply with every minor detail that the employer wishes. On the one hand, because a particular employer requirement is not a legal mandate does not mean that the employee should not do it; the fact that an employee is hired to perform a certain task is good enough reason for him/her to do it. On the other hand, employers will be vulnerable if they require an employee to do things which are impossible or unlawful.

While it is important to know that this section of the labor code is available to support employers in managing their employees, employers are better off using the basic concept of business necessity rather than the labor code section as a basis for seeking employee compliance. The best reason for an employee to do the work is because the work is the reason the employee is there . Further, documentation is essential to an employer's defense. If there is none, the employee's allegations might hold greater weight in his/her defense.


Positive Discipline

In the mid-1980's the notion of positive discipline became popular. As a system of notices, it provides employees with "reminders" rather than "warnings," focuses on the future rather than the past, and emphasizes solution-finding and problem-solving rather than punishment. It also emphasizes adult-to-adult communication. While a positive approach still has its place in the modern workplace, in some cases punishment rather than correction may be a legitimate management objective. A company's corporate culture, industry and related factors will serve to shape how discipline is conceived and practiced in the organization.

As a conceptual foundation for progressive discipline, consider the following process which should be integrated into an employer's policy based on its own culture and setting.

The Discipline Process encompasses the following five steps which are explained below:

  1. Diagnose;
  2. Investigate;
  3. Resolve;
  4. Document; and
  5. Redesign


1. Diagnose (Problem Identification)

What is the problem? This question addresses not only how the problem presents itself in the workplace, but also addresses the underlying causes of the undesirable behavior. In the workplace, an employee may present a situation as an attendance problem. Upon further development, the employer discovers that the real problem is martial or drug related. While the employer focuses on the attendance issues, the real problem is not being address. In a case like this, a referral to an employee assistance program empowers the employee to solve his/her own problems, and provides some assurance to the employer that the real issues is being addressed. Valuable and otherwise productive employee can be lost because the real issue was never resolved.

Who is responsible for the problem? Is there some level of shared responsibility between employer and employee? If so, what percentage and on what basis can you assign responsibility to one or the other? Sometimes management action or failure to act may be a part of the problem. If it is, don't blame the employee for problems cause by management. That is unfair. Correct the problem that management created and help the employee correct them problem he/she created for him/her self.

What kind of a problem are we addressing?

  • Performance problems
    • Ability problem
    • Skill problem
    • Motivation problem
    • Policy violations
    • Conduct rule infraction
    • Gross misconduct
    • Attendance and tardiness
    • Insubordination
  • Safety violation
    • Consequence to employee
    • Consequences to others
    • Economic costs
    • Impact on other stakeholders

Determining the type of problem helps to identify the kind of solution, if any, that emerges from the diagnostic process


2. Investigate

Fact-finding and data collection are prominent activities during the investigation. Before taking any action against the employee, management is responsible for ascertaining the relevant facts. Seek documents, records, witnesses and any other forms of evidence that bear on the outcome of the investigation. This could be a timecard, a vacation request form, or a requisition for FMLA leave, depending on the circumstances. The investigation may include speaking to witnesses, the employee involved, and other managers, and in some cases more than once. These discussions should be documented as people are capable of changing their stories. Also remember that the Weingarten rule may apply to investigatory meetings. The human resources professional, as a part of the investigation, must evaluate the evidence. The "beyond a reasonable doubt" standard does not apply to progressive discipline. Rather, the "preponderance of evidence" rule applies. In the case of harassment, the EEOC has published a set of guidelines to help employers conduct effective investigations. The guidelines are titled Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors and can be downloaded from http://www.eeoc.gov/docs/harassment.html. The guidelines provide useful questions to ask the complainant , the alleged perpetrator and witnesses. This resource applies to federal law only and does not address the special variations set forth in California's Fair Employment and Housing Act related to harassment.


3. Resolve

Once the problem is understood, management should then seek to design and implement a solution that resolves the problem. Too often HR professionals seek to implement a solution without having understood the real problem. Once the problem is diagnosed and investigated with skill and care, the resolution should fit the problem hand in glove. The plan should first seek a win-win-win resolution. A "win-win-win" is one that works for: (1) the organization; (2) the employee; and (3) management. This assumes that the conflict is between an employee and the immediate supervisor. Synergistic solutions emerge from thoughtful brainstorming and exploration of the real needs and interests of the parties, rather than stated positions only. Brainstorming with an Employer's Group consultant can also be an effective strategy for developing elegant solutions.

The solution to the problem is on two levels. First, what must be done in the workplace and by whom to eliminate the problem? Second, what level of discipline, if any, should be dispensed that "fits the crime?" In addressing the second level concern management must consider:

  1. The severity of the incident;
  2. The employee's past record of disciplinary actions and performance evaluations;
  3. Length of service;
  4. Extenuating, aggravating or mitigating circumstances. An extenuating circumstance might include the degree others are also at fault, thus recasting the issues. An aggravating circumstance includes conditions that point to a greater level of blame than originally suspected. A mitigating circumstance could be a set of fact the lead the employer to lessen the level of penalty as the accused may be less blameworthy than originally thought;
  5. How consistently management has handled similar cases in the past;
  6. Title VII, ADA, ADEA, DFEH and other statutory or case law factors; and
  7. The company's policies and past practices.

In a case where a new manager or supervisor has taken over and initial conflict arises, HR can recommend the use of a letter of clarification to reestablish the ground rules. This solution is outside of the context of progressive discipline, but it sets the stage for later communication and further disciplinary action.


4. Document

Managers should document the nature of the problem, the facts as determined by the investigation, the solutions presented and implemented, and both the employee's and management's responsibilities for resolution. What is important here is not just documentation, but defensible documentation. Unsubstantiated statements and claims, and statements of bias before the facts are investigated can all serve to damage the position of the employer. Documentation should be drafted bearing in mind that a judge or a jury might review the document for its integrity and credibility. While employers are not encouraged to sanitize the facts or the documents, employers are encouraged to train management to maintain a consistent practice in handling complex employee concerns. Strong cases are built on a trail of sound documentation. Before cases get to the point of damage control, contact an Employer's Group Consultant to validate the direction of your thinking or to discuss alternatives. If legal counsel is advisable, we will not hesitate to point you in that direction.


5. Redesign

Redesign has two elements. The first is follow-up, with both management and the employee, on a periodic basis to ensure that the solution is working and indeed has been faithfully implemented. On a broader, more strategic level, the second practice is to study the disciplinary problem; conflict in the workplace can be telltale. Frequently the problem is an indicator of deeper, more severe issues. When it is, use the information as a part of your continuous improvement process. In this way renewal is built into your existing systems and practices in human resources. A related practice is to track the number and types of disciplinary actions, how they are resolved, and who the participants are (both management and staff). This information is collected to identify trends and patterns. In addition HR management can also monitor the relationship and consistency between a disciplinary action given to an employee and the relevant performance appraisal.


The Discipline Policy

The discipline policy should outline the steps of progressive discipline and integrate the process which has been outlined above. Whether the policy has three or five steps is a matter of practice and should include a look at the employer's industry, the levels of risk, the impact on clients or the delivery of goods and services and related business concerns. While steps of progressive discipline can be outlined, an employer should clearly indicate that it is not obligating itself to an iron clad practice. Nevertheless, an employer should be able to establish a good reason why the employer did not follow its own policy in a given situation. Employers should reserve the right to skip steps of progressive discipline and reaffirm the right to terminate at-will. The difficulty is in balancing the at-will right with creating a positive environment for employees. Employees should not be left to feel that they are disposable.

Although the stages of  discipline can very depending on the nature of the problem, progressive policies typically involve some combination of the following steps: 

The basic elements of a disciplinary action should include:

  • Statement of the problem
  • Statement of standard violated
  • Statement of expectation of future
  • Statement of employee's responsibility for producing the desired outcome
  • Statement of what management is to do to produce desired outcome, if any
  • Statement of any planned follow-up action or meeting to resolve or monitor the conflict/problem
  • Statement of the penalty for not complying with the expectations of the employer

The manager should address the employee directly in the written communication, not a third party. It is the employee being disciplined who, above all, needs to get the message. If using an interoffice memo, use the "subject" section to give the document a clear and unambiguous title: "Final Written Warning," for example. And remember that even a "verbal" warning should be documented and given to the employee with a copy to the personnel file. If the case gets to a legal venue, the employer's legal defense will be based in part on the well-prepared notices that management has given to the employee.

 

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