Many of our clients are asking us about the subject of progressive discipline.

I am not a big fan of this form of employee discipline.  I am a fan of At will employment but we will talk more about that later.  If you are going to use this as a way to discipline your employees you need to be very structured and consistent. Basically, a progressive discipline policy is like a steps program that goes something like this.

  • First offense the employee will get a verbal warning
  • Second offense will cause the employee to get a written warning
  • The third offense will cause an employee to be removed from the work schedule.

No matter what the specific steps are the point is the discipline is progressive until the employee is terminated.  One of the problems with progressive discipline is that if you do not follow the steps correctly or consistently you are setting yourself up for a wrongful termination lawsuit.

No matter what form of employee discipline that you use you need to make sure that you are documenting all steps that are taken.  If you give a verbal warning you need to take the time and log in a journal that you keep as part of the employee file.  Be sure to list the date of the conversation and who was present.  It is always good to have an outline of what you want to talk with the employee about and then at the end of the meeting have the employee sign the outline.  You may even want to give the employee a copy of the outline.  Whether your favorite form of employee discipline is progressive discipline or not you need to make sure that you are doing everything you can within reason to give the employee a real chance to better themselves.  Don’t be in a rush to judgment or to terminate.

At-Will Employment

Using your at-will status as a form of employee discipline is my favorite but things have changed and it is not as easy to use as it used to be.  In the old days documenting what you did in the matters of employee, discipline was not that major of an issue.  The term “At-Will Employment” means that either party, the employee or the employer can terminate the employment relationship at will, with or without notice.

While all of that is still true today there is a much greater need to include the documentation aspect to discipline your employees.  When using your at-will status you must understand that you cannot use this as a way to terminate all of your older employees, nor any other protected employee category.

What I do like about this form of employee discipline versus progressive discipline is that you do not have to take specific steps.  While there are no specific steps to take you still want to make sure that you document every disciplinary action that you take with your employees.  You also want to make sure that you are not in a rush to judgment or terminate your employees period.  at-will employment allows you to treat each disciplinary action as an event versus steps program.

Employee Handbooks

In view of the rising number of California Labor Law employee lawsuits, your employee handbook will be your first line of defense.  If your employee handbook is current and well written and well implemented you will be well protected.  On the other hand, if you are not following your own company policies or your employee handbook is not current you will find yourself at an extreme disadvantage in the courtroom.

Should you have concerns about the state of your employee handbook, give us a call and we will be very happy to give you a free employee handbook review.  We love questions and we have been helping employers since 1997.