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Legal Issues to Consider When Disciplining Employees

Employee discipline – coaching, verbal and written warnings, and so on – is one of the most effective tools to improve employee performance and protect your company from liability. Used right, your company’s discipline system will help managers recognize problems early, work with employees to turn performance around, and ensure that employees know what the company expects.

However, discipline can also lead to legal problems, particularly if your company’s policy doesn’t protect your right to terminate at will, managers discipline employees inconsistently, or managers discipline employees for illegal reasons. Here are a few basic principles that will help your company stay out of legal trouble.

Discipline and At-Will Employment

Most employees in this country work at will. This means they may quit at any time, for any reason, and your company may fire them at any time, for any reason that is legal. (You may not fire an employee for discriminatory reasons, for example, or to retaliate against the employee for complaining of illegal activity, such as unpaid wages or safety violations.)

Your company’s discipline policy should explicitly state that employees work at will and may be fired at any time, for any legal reason. If your company has a progressive discipline policy (one that imposes increasingly severe measures for repeated or more serious problems), it should clearly say that the company has the discretion to decide whether and when to use these steps. Otherwise, an employee might argue that the policy created a contract promising that employees would be fired only once they have exhausted every procedure in your company’s discipline policy.

Managers should also be careful when they speak to employees about discipline. Managers should not, for instance, promise that employees will have a bright future at the company if they can improve their performance. Statements like these can create a contract for continued employment, rather than protect your company’s right to terminate at will.

Inconsistent Discipline and Discrimination

Managers must impose discipline consistently. In other words, employees who commit the same misconduct or display the same performance problems should be treated in the same manner. If managers play favorites or come down harder on some employees than others, it could result in a discrimination claim against your company by an employee who feels that a protected characteristic, such as race or disability, played a role in the manager’s decision.

Discipline and Absences

Federal and state laws give employees the right to take time off for a variety of reasons, including family and medical leave, pregnancy disability leave, military leave, leave to handle domestic violence issues, time off to attend a child’s school activities, and more. If your company disciplines employees for absences (as most do), make sure you are not inadvertently punishing employees for exercising their legal rights. If you discipline an employee for taking leave to which the employee is legally entitled, you are asking for trouble.

Talk to a Lawyer

For help drafting or reviewing your company’s leave policy and other documents, and for advice on whether you should fire an employee who reaches the end of your disciplinary steps, talk to an experienced employment lawyer. You can find lots of helpful information, forms, and strategies for using discipline to help employees improve their performance and conduct in The Employee Performance Handbook (Nolo).

From Lawyers  By Lisa Guerin, ​J.D., Boalt Hall at the University of California at Berkeley

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