Discipline and termination of employees is one of the more difficult aspects of operating a business. Despite this difficulty, it is important to take the time in making these decisions to protect yourself and your business. The particulars of how you handle discipline and termination can vary greatly from one business to the next, but below are some best practices that can be utilized in taking these actions.
Progressive Discipline
Most employers utilize a process of progressive discipline. For each succeeding infraction, the employee is given an incrementally greater penalty. A typical process can include a progression from verbal warnings and written warnings, to suspensions or performance improvement plans, and finally to termination. This method introduces a greater element of fairness, and lays an appropriate expectation for the employee in terms of what is to come.
However, it is important for your disciplinary policies to include language that will allow you to deviate from this process or to skip steps at your discretion, or you may be locked into minor discipline for serious infractions. The first time your employee is tardy, you may want to give a verbal warning, but the first time your employee brings a weapon to work and threatens a coworker with serious bodily injury, skipping straight to termination may be more appropriate.
Establishing a Complaint Investigation Procedure
In investigating complaints, it is not only important to document your steps, but also tofollow an organized and consistent process. Take the time to conduct thorough interviews, starting with the accusing party and ending with the accused party. Then gather all the relevant evidence, and use this information to make an informed decision on your course of action. Before taking the action, provide the parties with an opportunity to respond, and avoid the urge to pre-judge.
Based upon the responses you may choose to modify your original course of action. Remind all the participants about the prohibitions on retaliation, and set the expectation that there will be no adverse employment action or retaliation based solely on someone’s complaint, or any employee’s participation in the investigation. Consistently apply your disciplinary actions based on the results of the investigation.
Document, Document, Document
Business professionals should apply this principle across many aspects of their operation, but it is particularly important in the context of discipline and termination. If a termination decision made by your business is ever presented to a jury, then they are going to expect a very good reason for your decision and will want to see the documentary evidence supporting your actions. Keep in mind that the members of the jury are going to be scrutinizing your decisions with the benefit of hindsight, and they care greatly about fairness and consistency.
This means that at some point, likely quite some time after the precipitating actions have taken place, you are going to have explain the reasons for the termination, in detail. Documentation supporting that decision is going to be essential in defending against the claims. In the process of documenting the reasons, behaviors, incidents, and issues supporting your decision, be specific avoid generalizations such as “bad fit,” “poor listener,” and “personality conflicts.” In addition, once you have painstakingly documented your decisions with supporting evidence, make sure these records are actually kept for the appropriate retention period.
Timing
The proximity of the discipline or termination to a protected event, such as the birth of a child, medical leave, or asking for an accommodation, may be sufficient evidence to allow a claim to get past summary judgment and to a jury. If for any reason you have made the decision to terminate, but need to delay the action, document the timing of the decision carefully. Unless necessary, avoid terminations during family leave, injured worker status, or any other protected event. Even if you have good cause for discipline or termination, acting on that cause while an employee is in a protected status invites greater scrutiny. Alternatively, do not delay an investigation, disciplinary action, or termination unnecessarily, as the employee could move into a protected class with the passage of time.
The Final Meeting
At the termination meeting, effective and decisive communication is essential. If there are multiple reasons for the termination decision, provide all of them, and if some of them would independently constitute a sufficient basis for termination, make that specification as well. Be prepared with a clear and calm denial if the employee suggests that the motive for the decision may be improper and avoid giving ambiguous reasons. Failing to provide a clear reason when you have one might indicate to the employee that your decision was improper, or that the employee could still possibly save their job. Have a checklist prepared of any company property that you need returned, and obtain all items possible at the final meeting itself.
For any remaining items, have a plan to facilitate the exchange, tell the employee clearly and decisively that the items must be returned, and provide a deadline. While you may withhold discretionary benefits such as severance pay, it is impermissible to withhold earned wages pending return of property. If it becomes necessary, you may need to file a civil suit or involve the police, but do not withhold wages. If applicable, you may also remind the employee of their obligations under any nondisclosure, non-solicitation, or non-compete agreements.
Taking the time to set the groundwork for your decisions, following an established process and documenting the relevant issues and events, being mindful of timing, and conducting an effective final meeting will help protect your business, and ultimately create a more fair and predictable environment for your employees as well.
Shayda Zaerpoor Le is an attorney with Barran Liebman in Portland, where she represents and advises employers on a range of employment law issues. Contact her at 503-276-2193 or sle@barran.com.
