Out of the blue, an employee gets fired.
Or, tensions among employees increase because there’s a problem that isn’t being dealt with. One guy keeps showing up late, and soon, when the others realize he isn’t getting called out for it, the problem spreads to the rest of your employees. It isn’t long before tardiness is endemic.
In each case, employee discipline has broken down.
Discipline isn’t a matter of dominance and punishment. It’s about making the work environment safe and pleasant for everyone, both employees and management. Discipline works best when there’s a foundation of trust between managers and employees. That starts with clear communication and continues through consistency, using the following best practices.
1. Know what the law says about employee discipline.
Discipline can come in several forms, depending on the issue and how often it happens. It might be something as mild as coaching or as serious as a verbal or written warning. U.S. federal laws don’t outline specific plans to be used for employee discipline. Employers have basic leeway in choosing their approach.
However, there are laws that broadly cover employee discipline and termination issues. For example, the Worker Adjustment and Retraining Notification Act (WARN), which only applies to businesses of certain sizes, the National Labor Relations Law, which deals with unionized employees, or laws pertaining to age discrimination and civil rights in regards to employment.
For the most part, though, discipline and termination is left up to you, the employer. That doesn’t mean it’s a legal free-for-all. There are legal issues to consider once the process of discipline is started. You put yourself at legal risk when you have:
- A company policy that doesn’t protect your right to terminate at will.
- Not clearly informed employees what behavior is acceptable.
- Managers that show favoritism and don’t discipline consistently.
- Managers who discipline for wrong reasons, or in an illegal or abusive manner.
- Not documented or collected evidence of employee behavior issues over a period of time.
It’s a good idea to have your lawyer review your employee discipline policies in the employee handbook just to be on the safe side.
2. Establish clear rules for employees.
Being clear about your employment policies is imperative. You can’t begin to discipline an employee for behavior they didn’t know was unacceptable. There are a few common areas you’ll want to cover in your employee handbook and training:
- Employment at-will is not a federal law. Rather, it’s a standard practice business owners often adopt. It means that employers can terminate an employee for any reason with or without notice. Employees also have the same right to end the working relationship just as easily. If you want to use this technique, you need to be clear about this in writing.
- Attire and dress codes are a common struggle for businesses, particularly when your workforce is made up of younger workers. Be clear about what is acceptable, but make sure you aren’t violating any discrimination laws.
- Behavior rules are tricky to define. They include how employees get along with coworkers, how they treat customers, discriminatory actions, appropriate use of language, and so on. Put in writing what you expect.
- Productivity and work ethic involve how much you expect an employee to do, and specific duties and benchmarks for specific jobs. You will also want to address tardiness.
- Mobile device usage has become so prevalent that it’s worth noting on its own instead of burying it in behavior codes. Be specific about what you allow and what is unacceptable.
- Illegal behavior, such as theft, illegal drug use, intoxication, or violence, are grounds for immediate termination, whether you use a progressive discipline process (see below) or not.
In general, don’t assume.
Don’t assume your employees know that if there’s no work to do, that they should clean the kitchen or tidy up the clothing racks. Don’t assume they know they can’t show up to work ten minutes late all the time. Lay it all out, in writing, and go over it with them. Have them sign the employee handbook that these rules are located in so that you have documentation that they heard and understand what is expected of them.
3. Establish clear rules for your managers.
Any time a manager fails to discipline an employee in the same manner or procedure as a different employee, you set yourself up for legal action for unequal treatment. This often happens when you have several departments and managers who have a different “management style.” One might be more law-and-order, while another is more lenient.
All managers must be consistent in putting your disciplinary policies into action. There are federal laws that require you to apply discipline equally and consistently. To keep managers on the same page:
- Hold regular manager training, and make discipline policy review a prominent part.
- Be sure managers understand they should not make promises of future employment if behavior or productivity improves, since this can be seen as contractual by employees.
- Pay attention to disciplinary issues to be sure all employees are having the same experience.
- Have a common form for all managers and departments to use when they write up an employee for a disciplinary infraction, if you use written notices as part of the process. Be sure they fill out the form in full.
- Have a system which allows you to easily review disciplinary write-ups.
- Pay attention during employee reviews for hints that there are issues with equal treatment of employees by different managers. Make it a point to ask about this issue.
- Discipline your managers if they fail to uphold your own policies.
4. Decide what discipline method you will use.
There are any number of discipline methods you might use.
All discipline methods are based on the idea that there is a goal or benchmark that needs to be met, and that not meeting it puts something into motion. You can approach that in a punitive or rehabilitative manner. It comes down to your preference, both in what you think will work best for your business and what you are comfortable using.
- Progressive discipline is the process where you increase the level of severity of your discipline when an employee fails to correct an issue. It’s a common approach because it tends to protect employers from legal action, but not everyone is a fan. This generally takes a punitive approach, but you can mix rehabilitative elements (e.g. training) into it. If progressive discipline is your official process and you are in a state where the employee handbook is seen as contractual, it may keep you from immediate termination no matter what the circumstances. You may want to clarify under what circumstances progressive discipline will be enacted, and when immediate firing (employment at-will) is in effect.
- Training and performance improvement plans are less about fixating on a problem and using the threat of termination, and instead see each employee as valuable and worth investing in. They are a rehabilitative approach. Performance improvement plans (PIPs) may have check-in points, measurable goals, and a process to help an employee if they don’t meet these goals.
- Reassignment or suspensions are often associated with behavioral issues or severe conflict in which the employee has to be removed from a situation immediately but termination isn’t called for. Reassignment means retraining (rehabilitative) while suspension means some condition must be met before the suspension is over or the employee is terminated (punitive).
Let’s look at an example of a progressive disciplinary process at work. Your own might vary.
- Verbal warning. Tactful verbal warnings should be given when an employee exhibits behavior that goes against the rules.
- Written warning. A written warning documents in detail what the problem is, how the employee should change behavior to fix this problem, and what will happen if they don’t. These warnings should be signed by the manager, a witness, and the employee. A copy should be given to the employee as well as kept in his file. You may choose to issue more than one written warning before moving to the next step.
- Final warning. Employees are told all of the instances the unacceptable behavior occurred, including verbal and written warnings. Managers should note what employees were told to do to improve, and how they failed to do it. It should be made clear that termination is possible if improvement doesn’t happen.
- Probation. Some employers might want to give their employee one last chance to make a change before termination. Probation might include reduction in pay or re-training or close supervision.
- Termination. If the problem is not solved, you should bring the employee in, go over all of the documentation, discuss the process and attempts to make change, and terminate the employee.
Remember that the more detailed they are and the more process-oriented your policy is (e.g. progressive discipline), the less power you have to terminate immediately. As you create the discipline process, consider how it will play out in the types of situations you deal with.
5. Document employee discipline.
When you suddenly find yourself in a worst-case scenario, documentation is going to help you out. If employee discipline leads to firing or legal action, having no documentation to refer as a reason for disciplinary action will leave you open to possible legal consequences.
Documentation consists of two types:
- For the employee file. This is the documentation and notes you make and keep in the employee file but do not share with the employee. These are often the notes you might use during an employee review or when you’ve given the employee a verbal warning. These don’t count as “official” written warnings that start the process towards termination that the employee receives, but are instead a record that shows a pattern of behavior. Be sure you alert employees in your handbook that you do keep a written record of this nature.
- For written warnings. If you’re using written warnings, this is the type of documentation you share with an employee in private that is part of your discipline process. These types of warnings are usually a sign that early disciplinary processes have come and gone and you are progressing along towards possible termination if the employee doesn’t make changes.
It’s important to document issues, even if it’s as simple as noting when an employee comes in late or is not prepared. If you simply mentally note all of the problems and then, out of the blue when you can’t put up with it any more, fire or aggressively discipline an employee, it’s not fair to the employee. They may not have known that what they were doing was such a big deal.
6. Be proactive by using employee reviews.
Regular employee reviews, even for small businesses, are a proactive approach to employee discipline. Reviews are pretty flexible; they can be worked into just about any discipline process. They’re also useful if you don’t want to get locked into a progressive approach but instead want to help build the employee up and encourage (through coaching and training) better performance or behavior.
Documentation of behavior (good and bad) and productivity over time is what makes the difference between a great review and a waste of time. You have specifics to talk about, and that’s helpful.
7. Get the right mindset.
It’s important that managers don’t see employee discipline as punishing an employee.
This is a common failure in progressive discipline in which it’s easy to slip into a mentality of “if you don’t do X, I’ll punish you by escalating this.”
Employees aren’t your children, and thinking that negative punishment will bring about a positive result is foolish. At best, you’ll get the right behavior but the employee will likely feel resentment. As soon as a better job opportunity comes along, you’ll probably see those employees leave.
8. Stop focusing on productivity as your ultimate measure.
If managers are so focused on productivity, it’s too easy for them to let bad behavior slide as long as productivity goals are being met. Guess what inevitably happens?
You could call it the nuclear option.
Problems grow and grow and it gets to the point where the only option a manager has, after ignoring issues for so long, is to take immediate and drastic action.
Productive employees can still be creating problems, possibly even making employees around them less productive.
9. Follow your own guidelines.
Last but not least: whatever employee discipline policy you create, follow it.
It’s surprising how many employee rules and guidelines are created and then ignored by management. If you have it in the handbook and employees have agreed to it, your managers must follow it.The Quick Guide to Employee Discipline: What Every Manager Needs to Know Rob Wormley