Mastering Progressive
Discipline and Structuring
Terminations
www.PaulFalconeHR.com
Paul@PaulFalconeHR.com
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Contents
 Fundamental Elements of Workplace Due Process
 What is Progressive Discipline?
 Number of Steps
 Classifying Infractions
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Contents (cont.)
 Incident Description Dos and Don’ts
 Measurable and Tangible Improvement Goals
 Training and Special Direction to be Provided
 Documented Consequences “with Teeth”
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Contents (cont.)
 Watch What You Write: Avoid “Codifying the Damage”
 Avoid Documenting “State of Mind Offenses”
 Final Tips
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Fundamental Elements of Workplace
Due Process
 Rule 1: The employee needs to know
what the problem is
 Rule 2: The employee needs to know
what she needs to do in order to fix the
problem (a measurable standard must
be known in advance)
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Fundamentals (continued)
Rule 3: The employee needs to have
a reasonable time period in which
to fix the problem
Rule 4: The employee needs to
understand the consequences of
inaction
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To meet these four criteria:
 You and your company have to be
consistent in the application of your
own rules. Therefore, look to your past
practices. [Practice trumps policy!]
 The discipline must be appropriate for
the offense. Beware of over emphasizing de minimis infractions.
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Fundamentals (continued)
 Consider prior service, overall
performance, and prior performance
appraisal and disciplinary records so
that you’re not administering discipline
in a vacuum.
 Ensure that you have a “clean final
incident” before moving forward with
termination.
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What is Progressive Discipline?
 A series of one or more formal (documented) notices
that an employee’s performance and/or conduct
doesn’t meet standards
 A progressive system of notification where each step
contains some added element to impress upon the
employee the growing sense of urgency
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Number of Steps
 Follow the verbal > written > final written warning
paradigm unless starting with anything less than a
final written warning could make you, as an employer,
appear irresponsible.
 Accord more due to process to longer-term workers
(via paid decision-making leaves or unpaid
suspensions).
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Classifying Infractions
 A repeated violation of the same rule or
the same type of rule is key to
progressing through the steps of
progressive discipline.
 Remember to view behavior in terms of
overall responsibility rather than as
isolated behavioral acts.
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Two Key Categories
 Performance Transgressions (including policy and
procedure violations and attendance / tardiness) -Follow all regular steps of disciplinary process.
 Behavior/Conduct Infractions -- Move to
immediate termination or a final written warning for a
first offense, if necessary.
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I. Incident Description Do’s and
Don’ts
Rule 1: Employ the traditional who
- what- where - when - why
paradigm when drafting narratives
Rule 2: Use your senses when
describing events, and paint
pictures with words
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Incident Descriptions (cont.)
 Rule 3: Document the negative
organizational impact that resulted
from the employee’s actions
 “I found inconsistencies throughout
your calculations and had to correct
them myself before they could be
processed. As a result, . . .
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Incident Descriptions (cont.)
 I had to work until 10:00 PM last night
 We’ll have to hire a temp
 We’ll need to push back the go-live date.”
Special Note: Don’t forget to attach the evidence (i.e.,
documented examples of the problematic work
product, if available)!
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Incident Descriptions (cont.)
 Rule 4: Whenever possible, include the
employee’s response in the warning to
document that you listened to the
individual’s side of the story before
taking disciplinary action.
 “When I asked you how this occurred,
you stated. . .”
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II. Measurable and Tangible
Improvement Goals
State your expectations clearly:
“I expect you to complete your
recruitment statistics by the fifth of the
month and tell me in advance if you
will be unable to collect the data from
HRIS to meet this goal.”
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Measurable Goals (cont.)
 “You are expected to meet our organization’s guidelines
regarding attendance and punctuality for the
remainder of your introductory period and thereafter.”
 “I expect you to always treat your coworkers with
respect and to foster an inclusive work environment.”
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III. Training and Special
Direction to be Provided
 Whenever possible, address a problem
with positive tools and encouragement
in order to “meet the employee half
way.”
 Discipline should always be delivered
hand-in-hand with training and other
“affirmative” employer efforts.
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Training (continued)
 “I will meet with you in your office every Monday for
the next four weeks to . . .”
 “In an effort to sensitize you about how your behavior
might impact others, please investigate one-day
workshops on dealing with interpersonal conflict in
the workplace, which you may attend on company
time and at company expense.”
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Training (continued)
We supported you through your FMLA leave of absence, which initially exhausted its 480hour maximum and expired on July 6th, 2013. You immediately requested an additional
two weeks off for a personal leave of absence from August 24th – September 6th due to an
illness in your family, which was likewise granted. Then as an ADA accommodation for
modified duty, you were permitted to work in a restricted capacity from July 21st –
December 14th. You ultimately received a full return-to-work release from your healthcare
provider on Monday, December 14th. However, on Wednesday, December 16th, you
stated that you slipped and fell and initiated a workers’ comp claim, which the company
fully supported. (Note that we have since received medical documentation releasing you
to return to full duty.) In addition, we agreed for you to work in an office location closer
to your home one day per week to accommodate your longer commute.
You are certainly entitled to these leaves, but the timing of the occurrences, your taking
time off “at whim,” your failure to apprise management of your whereabouts or report
back to duty as instructed, and your disregard for policy and protocol have now placed
your position in immediate jeopardy of being lost.
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IV. Documented Consequences
“with Teeth”
Catch-All: “Failure to
demonstrate immediate and
sustained improvement may
result in further disciplinary
action up to and including
dismissal.”
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Consequences (continued)
Consequences with no time limits:
“If you ever again engage in conduct
with a supervisor, coworker, or
customer that could be considered
hostile or offensive, or threatening or
overly challenging, you may be
immediately dismissed.”
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A Short Illustration
 August 2013: Verbal Warning
 October 2013: Written Warning
 December 2013: Final Written Warning
 February 2014: Performance Review “meets
expectations”
 April 2014: Department requests termination
 Question: Can you terminate safely?
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Watch What You Write. . .
•
Avoid using the words “always” and “never” in both your
verbal and written communications.
 Avoid documenting “state of mind” offenses: do
not use words such as “willfully, maliciously,
purposely, deliberately, or intentionally” (mental
element qualifiers)
 Do not “codify the damage.” Remember, these
documents are all discoverable (e.g., “Sexual
Harassment” is considered a legal conclusion).
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Final Tips (cont.)
 Don’t ever rush to judgment at the finish line: You’re better of
placing an individual on a paid, investigatory leave when you
need additional time to reach a conclusion.
 Don’t manage by fear of a lawsuit: Instead, make sure that if
one comes your way, you’re getting sued on your terms, not
theirs!
 Successful verbal and written interventions allow you to
handle matters respectfully, responsibly, and in a timely
manner, which are the key tenets of workplace due process
and fairness.
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Q&A: Questions and Actions
Paul Falcone
www.PaulFalconeHR.com
Paul@PaulFalconeHR.com
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