248-409-1900 dburke@mi-worklaw.com

By: Dan Cohen  – 4/29/14

One of the most important functions of managing people is managing their expectations. This is certainly true when it comes to the disciplinary process. To do it right, you must keep a few things in mind. First and foremost, you must understand the goals of the disciplinary process. The primary goal should be “corrective.” Every employee hired is an investment, and you want to maximize the return on your investment. This means you must train your employees so they are hitting on all cylinders as quickly as possible. Performance based discipline should, therefore, be designed to reinforce your/their expectations and help the employee succeed. Hopefully, the employee learns from the mistake and does not make it again. With performance based discipline, repetitive mistakes should be met with progressively more severe discipline. This approach tends to work best with attendance, proficiencies, efficiencies, following proper procedures and the like. Success here saves you time, money and energy for the simple reason you will not have to go back to square one and hire and train someone else.

With infractions that go to the employee’s integrity and character, you should still be thinking “correction,” but your actions should also be designed to protect the business. This means you must be preparing for the distinct possibility that this employee will have to be shown the door. Employees who lack integrity, who have character flaws and those who are not team players are the employees most likely to sue. They tend to look at employee relations as “us” against “you.” How you document these circumstances will, therefore, be critical. Moreover, since employees facing discharge have a nasty habit of whistleblowing or otherwise seeking protection against discharge, if and when the prospect of discharge should be mentioned is a strategic matter.

The third category of misconduct is what we refer to as the “cardinal sins” of the workplace: fighting, substance abuse, theft, dishonesty, harassment, etc. When faced with misconduct of this variety, you likely will and should be less forgiving and move toward discharge much more quickly and often immediately. Progressive discipline is not the rule when “cardinal sins” are involved.

Over the years, we have heard (only sporadically) some employers question the wisdom of committing things to writing. Personally, I cannot think of a single reason why you would pass on the opportunity to create what should be the best piece of evidence should your disciplinary decision be challenged. Just off the top of my head, I can come up with several good reasons to document your decision:

  • It dissuades plaintiff’s counsel from taking the case—there is no better way of stopping plaintiff’s counsel dead in his/her tracks than a well-documented personnel file. Indeed, well-written documents take away many common arguments like, it wasn’t committed to writing because the “real” reason was illegal or it never happened.
  • It shows fairness—jurors like to see that you worked with the employee and communicated your expectations, giving the employee an opportunity to meet those expectations.
  • It shows the jury you stand behind your decision—documentation forces you to take ownership in the decision. Without documentation, you risk jurors thinking you lack conviction or there was not a good enough reason to commit it to writing.
  • It is easier than telling the story for the first time under oath and cross examination—It is far easier telling the story that has already been told in documents prepared prior to the heat of the battle. The documents become your script.
  • People remember things they see better than things they are told—We are a visual species, and we remember things better if we see them rather than just hear about them. What better way to make a lasting impression on the jury than to have a real “work of art” blown up and front and center throughout the trial?

There is a definite protocol for developing good disciplinary documents. Of course, the starting point is the publication of comprehensive work rules. Every employee should receive a copy and acknowledge their receipt. A handbook is probably the best place to publicize the rules of the shop. Timely and consistent enforcement is next. The easiest way to do this is to be a historian. Communicate with others to find out if something has happened before and how it was handled. Know the employee’s disciplinary record before creating the write-up. And, don’t make it personal.

Now that you are convinced that your decision should be documented and you understand what needs to happen before putting pen to paper, you are ready to prepare the write-up. Every write-up should identify the work rule violated and the facts that support the write-up. Past discipline is worth mentioning as well. A good write-up is signed by the employee. One way to achieve this is by giving the employee an opportunity to agree or disagree with the write-up. Give the employee a chance to explain his/her disagreement with a space for a signature. If the employee refuses, the write-up should note the employee’s refusal. Finally, a statement that further infractions will result in additional discipline, up to and including discharge, is key and gives you flexibility for future occurrences.

If you are writing a discharge letter, you still want to reference the facts that establish the violation. State your legitimate, non-discriminatory business reason clearly. Unless addressing one of those cardinal sins, you want to make it a point to mention the employee’s prior discipline and your efforts to reform the employee’s behavior. This shows fairness. When applicable, highlight the burdens placed on the team/co-workers, business operations and customers. Finally, don’t lose sight of your audience. You are not just writing for your employee, but for his/her attorney, the court and a jury.