Avoiding Liability with Proper Discipline
and Discharge Procedures
Presented by:
Ana S. Salper
September 10, 2008
Importance of Discipline and Termination Policies
• Every employer faces discharge
decisions
• Presumption of “employment-at-will”
eroded by legislation (e.g. race, age,
sex, and disability discrimination),
judicial enforcement of public policy
(whistle blowing protection), tort and
express and implied contract theories
Importance of Discipline and Termination Policies
• Employers must always be careful to ensure
that their disciplinary and termination
decisions are for job-related and
nondiscriminatory reasons, do not violate
any contractual commitments and comply
with applicable federal, state and local laws,
and Company policies and procedures
• Failure to do so may provide a discharged
employee with the opportunity to argue that
he/she was really terminated for a different
reason
Importance of Discipline and Termination Policies
• Employer can take various precautions
that will minimize lawsuits brought by
their former employees, and to
minimize company’s exposure if suits
are brought, including:
– consistently applied discipline and
termination procedures
– documentation of the reasons for actions
– following practical rules in
communicating discharge decisions and
their aftermath
Discipline Checklist
•
Prior to taking disciplinary action, consider
this checklist of factors. If you get many
"no's," you might want to re-examine the
situation.
1. Does management know all the facts
accurately?
2. Is the violated rule, policy or procedure
published? If not, can you prove that the
employee otherwise knew of it?
3. Is the violated rule, procedure or policy
reasonably related to the orderly, efficient or
safe operation of the Company?
4. If other employees have violated this rule,
procedure or policy, did they receive the same
disciplinary action as this employee?
Discipline Checklist
5. Does this employee have the worst record of all
employees in connection with the violation of
the rule, procedure or policy? If not, are there
extenuating/unusual reasons why discipline is
necessary?
6. Has this employee been warned previously for
violation of this rule, procedure or policy? If
yes, when?
7. Has this employee been warned previously for
violation of other rules, procedures or policies?
If yes, when?
Discipline Checklist
8.
In cases where appropriate - has the employee
been given lesser penalties according to work
rules, past practice, in line with current
industrial relations practice? (The gradual
warning or step-up of penalties does not apply
to major infractions such as theft or assault
when there is absolute proof.)
9.
For employees represented by a union - were
collective bargaining agreement procedures
followed? Were Weingarten rights given if
properly requested? What has the Company
done in other similar cases? Has the union been
notified?
Discipline Checklist
10. Was the incident that triggered the contemplated
action carefully investigated?
11. Does Company evidence include names of
witnesses, dates, time, places and other
pertinent facts on all past violations, including
the last one?
12. Is the degree of discipline to be imposed on this
employee related to seriousness of the proven
offense, the employee's past record and his/her
length of service?
13. Is this employee personally guilty or only guilty
by association with another?
14. Does the employee have a "reasonable" excuse
for the infraction of the rule?
Discipline Checklist
15. Has the employee been given an opportunity to
give his/her version of matters?
16. Is the documentation consistent with the actual
reason for discipline?
17. In considering discipline, did you feel you had
sufficient time to make a determination?
18. Would termination of the employee prevent the
vesting of benefits in the immediate foreseeable
future?
19. Were any representations made to the employee
other than that the employee was terminable-atwill? (E.g., was the employee told his job was
"secure for life" or "as long as he wanted it" or
"as long as the corporation keeps growing?)
Progressive Discipline
• What is the goal of progressive
discipline?
– To improve employee performance and
assist the employee to meet company’s
performance expectations
– To enable a company to fairly (with
substantial documentation) terminate
employees who are ineffective and
unwilling to improve
Progressive Discipline
• What is the ideal progressive
discipline policy?
– Provides for range of action depending on nature
of offense and work record
– Makes clear that some offenses usually will
result in immediate termination
– Provides progressive corrective action for other
offenses, typically a verbal warning, a written
warning, suspension and then termination
– Reserves right to deviate at management’s
discretion
Progressive Discipline
• It is always easier to defend against a claim
of wrongdoing when good cause exists for
the action
• Evidence that an employee was previously
warned about the same or similar
misconduct, or advised that such conduct
could lead to immediate discharge, can go a
long way towards avoiding or defending a
lawsuit
• Employers must be careful that progressive
discipline system itself becomes the basis for
a claim that it was not followed
Progressive Discipline – Oral Warning
• A conversation between a supervisor and an
employee held in private about a disciplinary
problem.
• Designed to correct a performance or
disciplinary problem by bringing it to the
employee's attention in a serious but friendly
manner.
Progressive Discipline – Written Warning

•
Normally the second step after an Oral
Warning or Counseling and no change in
performance or behavior.
Designed to correct a problem by
discussing it with the employee and
providing a written record of that
conversation.
Documentation: Why Do You Need It?
• To clearly identify performance
improvement areas
• To give employees a road map and time to
improve
• To minimize miscommunication between
managers and employees
• To avoid memory discrepancies between
managers and employees
• To avoid or defend wrongful termination
lawsuit
Documentation: What Should It Be?
• Accurate
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Objective facts concerning actual performance as they occur
Only job related actions or performance deficiency
Direct observations – don’t rely on hearsay
Avoid stereotypical wording suggesting discrimination
• Objective
 Describe specific actions or performance deficiency
 No evaluative statements or personality traits (unless directly
related to performance)
• Consistent
 Record actions, performance deficiencies, as well as positive
performance
 Same basic format and detail for each similar situation – someone
should review
 Follows company policies
 Maintain documentation on all employees
Documentation
• What information should it contain?
-name;
-date of the infraction;
-specific rule violated or
performance problem that has
occurred;
-reference to previous
conversations about the problem;
-statement of the specific expected
change in the employee's
performance or behavior and what
will happen if expectation is not
met;
-any comments or statements the
employee made during the
conversation
Corrective Action- 10 Key Points
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Don’t procrastinate
Keep it private
Be honest & respectful- do not threaten
Be consistent and equal
Document and stick to the facts
Discuss accountability
Give employee opportunity to explain
Propose solutions
Get approval and witness
Follow up
Involuntary Termination
• When is Involuntary Termination
Warranted?
-Two types of involuntary terminations:
- Resulting from employee performance or
attendance problems – usually given a warning
and an opportunity to improve
- More serious types of misconduct, such as
insubordination, dishonesty, misconduct, theft,
unethical practices, fraud, and falsification of
records – generally discharged immediately,
without warning or a period of time in which to
take corrective action
Specific Grounds For Discipline And
Discharge
•
Absenteeism/Tardiness
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Do guidelines exist?
Consistency
“No-fault” plans.
Mitigating factors – Title VII? FMLA?
ADA?
Specific Grounds For Discipline And
Discharge
•
Insubordination
1. Direct refusal to do an assigned job or
obey an order;
2. Willful failure to do an assigned job or
obey an order; or
3. Cases where employees challenge,
criticize, obstruct, abuse or interfere
with management's supervision.
– Was order clearly understood?
– Was an excuse offered and reasonable?
Specific Grounds For Discipline And
Discharge
• Negligence/Carelessness
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What was the negligent act?
Past history.
Other factors involved.
Mitigating circumstances.
• Below Standard Performance
– Standard established and reasonable?
– Other factors.
– Extenuating circumstances.
Specific Grounds for Discipline and
Discharge
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Violating Drug/Alcohol policy
Theft, attempted theft
Willful damage to company property
Failing to report to work when scheduled
Willful falsification of company records
Assaulting co-worker or threatening bodily harm
Dishonesty
Harassment
Being in possession of illegal weapons on company
premises
• Posing direct threat or present risk of injury to
oneself or others
Reviewing A Proposed Discharge
• Identify the valid, job related, reason for the
termination.
• If the termination is due to a specific incident,
determine whether a proper investigation has been
conducted and documented in writing.
• Ensure that the employee was informed about the
problem.
• Ensure that the employee’s overall work record has
been reviewed.
Reviewing A Proposed Discharge
• Look into any extenuating circumstances which
may have played a role.
• Look for any evidence of illegal harassment or
discrimination.
• Look for evidence of illegal retaliation.
– Retaliation = taking an adverse action against an
employee because of the employee’s exercise of a legal
right such as reporting wrongdoing or reporting
health/safety violations.
Reviewing A Proposed Discharge
• Determine if the recommendation is
consistent with prior cases involving similar
facts. If not, is there a valid justification?
• Ensure that the employee has received all the
rights and benefits of employer policies (e.g.
progressive discipline).
Reviewing A Proposed Discharge
• Have the recommendation reviewed by
someone familiar with employment law.
• Explore alternatives to termination, such as
transfer or demotion.
• Consider offering a severance package in
exchange for a release of any claims.
Reviewing A Proposed Discharge
• Smell test:
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Does it make sense?
Does it seem fair?
Does it seem excessive?
Seriousness of infraction.
Length of service.
Suspensions
• If it is deemed necessary to temporarily
remove an employee from the
workplace because of violation of a
policy and/or to provide time to
investigate circumstances of alleged
violation, the employee should be
suspended with pay
• Suspension without pay only per
contract/agreement
Communicating the Termination Decision
• The termination meeting is critical because it
often dictates the employee's course of action.
• An employee whose termination has been
poorly managed is more likely to take legal
action against the employer.
• It is wise to invest in a careful, concerned
approach, which could include offering the
employee, counseling services, outplacement
assistance and even an agreement with a
release.
Communicating the Termination Decision
• Terminating an employee can be the most
difficult task a supervisor faces – emotions
must be put aside.
• Clear communication of a termination
decision begins well before the employee is
actually terminated - in prior warnings and
clear policies.
Communicating the Termination Decision
• Termination Meeting
 Two company representatives present
 Give explanation/reason for termination
 Be truthful, but provide no more information than
necessary – your statements will be repeated
 Let employee respond, but avoid argument
 No longer than necessary
 Address benefits, references, obligations
 Document meeting
 Security issues – plan in advance but avoid suggestion
of defamation, false arrest, etc.
Communicating the Termination Decision
DO 
• Apply the company’s rules and policies
in a consistent manner
• Arrange for 2 people, if possible, to
attend the termination meeting
• Have the appropriate paperwork in
order
• Be truthful
• Treat the employee respectfully
Communicating the Termination Decision
DON’T
• Take action without obtaining the appropriate
approval
•Be defensive and feel you must persuade the
person that the action is justified
•Make jokes
•Compare employees’ job performances
•Make gratuitous comments praising the
employee’s job performance
•Threaten retaliation should the employee
indicate that s/he will file a lawsuit
Termination-Security Considerations
• Schedule for end of the day.
• Alert security, but avoid obvious presence
unless necessary or strong reason to suspect
a problem.
• Be patient if employee initially resists
leaving.
• Arrange immediate cut-off of access to
building, voice-mail, email, computers – pull
plug while in termination meeting.
• Escort to retrieve personal possessions or
arrange for later pickup or delivery. Retrieve
purse or coat.
• Request keys, building card, id’s, return of
company property.
Termination-What to Tell Co-Workers
• Do not tell coworkers in advance.
• Avoid revealing details about reason for
termination.
– In some circumstances it may be necessary to
reveal limited information in order to quell a
rumor or for other business reasons.
• If asked, the supervisor may say that the
individual has left, has decided to look for
other employment, or that he/she is not free
to talk about it.
• If the former employee accepted the
dismissal, he/she can say that the employer
and the former employee agreed to part
company.
Conducting Exit Interviews
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If possible (and depending on the
circumstances) an exit interview should be
conducted for all terminating employees,
whether voluntary or involuntary.
Information obtained in these interviews
can be invaluable in evaluating policies
and procedures, in spotting turnover
problems and in the possible retention of a
valued employee, and even in anticipating
possible litigation.
Personnel/Human Resources (not the
immediate supervisor) should conduct the
interview. The supervisor should complete
the paperwork to terminate the employee
from the payroll.
Conducting Exit Interviews
•
Preparation
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Review questions outlined in the Exit
Interview Guide and the information in the
employee's personnel file.
Arrange for privacy and allow enough time to
obtain the information required.
Arrangements should be made to conduct exit
interviews on Company time with employees
working second and third shifts.
Compile all appropriate forms (Cobra
information, 401(k), Pension, etc.).
Conducting Exit Interviews
•
The Interview
– Have the employee report to Personnel/Human
Resources. If voluntarily leaving, make
employee aware of the reason for the interview in
advance.
– Maintain a relaxed atmosphere. Establish trust by
assuring the terminating employee that his/her
comments will remain confidential. Ask that the
employee also treat the interview confidentially.
– Convey the policy that the individual is assisting
in evaluating Company policies and procedures
and that his/her comments will not affect
references.
– Tell the employee you would appreciate
frankness and openness, as the employee's
comments may be beneficial to fellow
employees.
Conducting Exit Interviews
• The Interview (cont’d)
– Allow the interview to unfold naturally. Do not ask
questions in sequence but make them part of the
conversation. Do not allow it to become a question
and answer session. Always try to phrase inquiries
so they cannot be answered with a "yes" or "no.”
– Exercise care in reacting to gripes and
dissatisfactions. Your objective is to elicit
information. Remember, your reactions and
comments will filter through the organization.
– Be sure to discuss benefit issues, unused vacation,
final paycheck, and Company property with
employee. Collect ID Badge, keys, and any
security access cards.
Conducting Exit Interviews
•
Close
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Thank the terminating employee for
his/her cooperation.
–
Immediately complete an Exit Interview
Form when the interview is over.
Record the employee's comments
without editorializing. Maintain a file
copy of the form in the personnel file.
Tips on How to Recognize Potential
Litigant
• Particular attention should be given to
employees who:
– Are rarely or never satisfied
– Have made other complaints about the
Company, supervisors, or particular
treatment at work
– Have made comments based on being a
member of a protected class
– Have a “chip on the shoulder” type of
attitude
Tips on How to Recognize Potential
Litigant (cont’d)
• Have a personal grudge against the Company
or a particular supervisor
• Might have trouble securing another position
elsewhere
• Asked a lot of questions when they learned
they would be terminated
• Being extremely angry and/or uncooperative
at the termination meeting
• Have asked for copies of personnel file or
policies
FINAL THOUGHT . . .
TRAIN MANAGERS
TO ALWAYS CONSULT
WITH HR BEFORE TAKING
DISCIPLINARY ACTION!
Avoiding Liability with Proper Discipline
and Discharge Procedures
Presented by:
Ana S. Salper
September 10, 2008