Employee Discipline: Laying Down the Law

I come from a loud Greek family who unapologetically can’t help but to tell you like it is.  I too am known to talk a little too much, but over the years I have become more strategic regarding the content of my conversations.  I used to feel like it was my obligation to educate and right the wrong of others for the greater good.  In my older and wiser years, I take a new approach to conflict resolution.

Whether you’re filtered or not, everyone has had the uncomfortable pause after making a questionable comment where you think “did I just say that?” “how was it received?” “what will be the broader effect?” You don’t feel better for just having gotten it out, nor have you accomplished your goal (especially if you did not approach the problem with a clear intent).  Instead you may have made the situation even worse and closed off an opportunity to have a connected conversation and achieve your desired results.  This is especially important to work on in the workplace.

Let’s consider an example.  An employee is consistently late, never calls with notice, sneaks in to hide his or her arrival time and is incredibly defensive when confronted about this behavior.  One morning where you too have had an especially stressful day getting out the door (kid decided she doesn’t want to wear clothes today, fire department showed up for burnt toast and had to search the whole house, and the screen of your iPhone shattered in the parking lot – i.e. Monday).  When you walk in feeling guilty that you are 5 minutes late you see employee L saunter in 30 minutes later.  That’s it.  You’re the boss and this behavior MUST end – you meet them at the door and tell them to collect their things.  F.I.R.E.D!  You exclaim with a smile – which receives the response of trembling tears and a tale of their spouse battling serious disease and the explanation that they have to take them to the doctors before work every day.  Full stop.  You back pedal faster than a DVD on rewind and mumble never mind.  The employee’s behavior only gets worse but you are never comfortable saying anything again, even though their performance is having a materially negative effect on operations, and at worse you may have opened yourself up to employment discrimination liability.  F.A.I.L.U.R.E

The first line of defense is clearly drafted policies, followed by consistent enforcement and open lines of communication.  From day one you must be clear regarding operational expectations.  Sometimes that means from formation or hire, but other needs arise down the road and as soon is there is a policy change it must be discussed and implemented.  Having written policies is incredibly helpful, but do note that employee handbooks have been considered contracts in certain situations so make sure you too are following the policies you put in place.  Most importantly ensure that everything is being equitably enforced.  You can NOT treat similarly situated employees differently.

Just because there is a written rule does not mean that everyone is always going to comply.  Many live by the well if I don’t get caught – or if they don’t complain they don’t really care.  When there are infractions make it clear from the first time that they will not be tolerated.  That does not mean there need be any additional discipline but a warning, but you are drawing a hard or soft boundary and though it’s never a comfortable conversation, it only gets harder when you’ve let it slide so many times before.  Again, be consistent between employees, but also be careful not to create a progressive discipline policy if that is not your intent (ie 3 strikes your out – otherwise you will need to make sure you follow the process each time).

When notifying an employee regarding an infraction make sure that you do so as privately as possible and in a non-confrontational manner – just state the facts not your feelings (if appropriate have a witness with you).  Start by reviewing the policy and indicating how the employee was informed of what was appropriate.  Then apply the rule to the behavior.  Describe any discipline that will or will not be taken this time, as well as what will happen if the behavior takes place again.  Have a conversation about the appropriate way to deal with such situations in the future.  i.e. if your car breaks down, who should be notified and how to ensure that this does not progress to a discipline conversation.  If the employee needs more long-term accommodations to, for example care for a sick family member, make sure you review the law or consult with counsel to cover what accommodations you’re required to provide and then determine and clearly communicate what you’re able to do.  Keep a written discipline log as part of your business records and when appropriate provide the employee with a written warning so there is no confusion regarding what took place on either side.  If you can have them sign it acknowledging they agree with your explanation of events, even better.  Again, only make this part of your policy if you’re able to do it each time such a situation takes place with similarly situated employees.

No one likes to be the bad guy or have the hard conversations, but no business can survive without rules and regulations.  More than anything employees want to understand what the expectations are, and they can decide if they are able to comply.  By the time it comes to the worst-case scenario of dismissal it should come as no surprise.  So consider your needs, write the rules, make sure they are clearly communicated and consistently enforced.

This content is for general educational purposes only and does not to provide any specific legal advice. By using this Site you understand that there is no attorney-client relationship between you and Trident Legal.  This information should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

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