D. Progressive Discipline

Performance appraisals are a useful tool in a well-administered progressive discipline system. Such a system can help an employer to change an employee's performance and, if successful, salvage an employee who has not been performing up to standard. Progressive discipline can also be used to build a file against an employee and convince him/her that protesting a dismissal in court would be futile. By placing the employee on notice of a performance problem and providing an opportunity to correct the problem, your company can establish a record to support your position that the employee was fired for a valid reason.

In too many cases, supervisors recommend dismissals of individuals, without having supporting documentation to back up their decisions. Many can verbally describe a worker's performance problems, but do not have written proof (unsatisfactory performance appraisals, written memos to the employee, records of lateness or excessive absences, etc.). Often, the individual's personnel file does not support a firing decision because of the favorable appraisals it contains. This must be avoided at all times.

TIP: By utilizing a system of progressive discipline and disciplining the worst offenders first, post-termination litigation can be discouraged, and the record of progressive discipline can establish to a jury that the reason given by an employer for the firing was real and not a pretext.

Counsel Comment #96: Consider implementing the following for maximum protection:

1. Specify in your company's handbook or employee manual the kinds of conduct that are serious enough to justify im- mediate termination without a warning. Many companies have a discipline structure that includes.findlaw a series of oral and written warnings and suspension before an employee can be terminated for breaking company rules of conduct. But for some offenses, dismissal should be automatic. By listing the kinds of infractions which can lead to immediate discharge in a Rules of Conduct section, you place employees on notice and offer less ammunition to complain of a firing if they commit serious acts.
2. State your progressive discipline policy in the supervi- sor's manual rather than in the employee handbook. In many states, courts are ruling that employees have the right to rely on statements contained in employee handbooks. Thus, for example, if the handbook states that all employees must first be orally warned, then warned in writing, then suspended without pay before being fired, a company might have to follow this policy before terminating an unsatis- factory worker or be liable in a lawsuit for breach of contract. Although this is useful as a policy in general, the company might desire to terminate a particular worker suddenly rather than bind itself to the lengthy process of notification, review and then discharge. Offering specific policies in the supervisor's manual only may minimize this potential problem.
3. Prepare a system of progressive discipline suitable for your company. The steps might include:
• Informal meetings and oral reprimands (followed by a memo of such a meeting placed in the employee's file);
• Written deficiency notices with a statement in the memo spelling out the consequences of failure to correct performance problems;
• Unsatisfactory performance evaluations;
• Suspension without pay and/or termination.
• Each company should implement its own system using the above as a guide. However, each step must be applied uniformly and consistently. Once established, do not deviate from these procedures for anyone. For example, during dis- charge, be sure to discipline or terminate the worst offenders first: do not use any other basis. Remember that you invite a lawsuit based on sex, race or age discrimination if you have several people with a chronic problem, such as absenteeism, but choose to fire the older (or minority or female) employee first. However, if those with the worst absenteeism records are discharged first, especially after warnings, a claim of discrim- ination may never materialize or if it does, be deflated.
4. Prepare written deficiency notices properly. The written deficiency notice should state facts (i.e., dates and times of incidents, and specific details of violations or rules). In the event of a lawsuit, a comprehensive memo can refresh the supervisor's memory and its accuracy will less likely be questioned. Additionally, the memo should establish a reason- able timetable for correction which provides the employee with a fair opportunity to improve. For example, if the company gives an employee a period of one week to correct deficient performance, this may create the impression that the employee is being "set up" for a firing. It may also be wise to include a statement regarding a reasonable amount of time that a warning shall remain in effect for example, not more than 12 months from date of issue.

TIP: All warnings given to the employee should be signed by both the supervisor and employee and dated. If the employee refuses to sign, the supervisor should note this on the form.

5. Give ample opportunity to hear the employee's version of the story before taking further action. This will make your company appear fair, and may give you the opportunity to decide if the facts are accurate. In addition, knowing the employee's version will help you to prepare a defense in the event the matter is litigated in the future.

TIP: Some companies allow disciplined workers the right to grieve or appeal disciplinary decisions. Rules or procedures are established and publicized in personnel manuals providing workers with specified procedures (i.e., written notice of the appeal must be given to the company or an employee appeals board within a specified number of days after the decision, etc.). Although such appeals processes may work in theory, in practice they can become an administrative nightmare for companies and should be avoided unless absolutely necess- ary as in a collective bargaining agreement with union workers, where they may serve the positive function of reducing protracted arbitrations.

6. While applying disciplinary measures uniformly is important, remember that exceptions to any company policy may arise when considering the nature of the job and the circumstances of each case. For example, the higher the job in the corporate chain of command, the greater the right to disagree, argue, question and even disobey. What is seen as insubordination in a clerk, justifying disciplinary procedures, may very well not be so in an executive because courts allow executives to exercise more discretion. Thus, apply a discipline policy uniformly but note special problems inherent in trying too hard to be consistent.

TIP: A time-honored rule in labor relations, typically upheld by labor arbitrators, holds that if an employee believes a supervisor's orders are in any way improper, the employee must first obey them and then file a grievance except where the work involved may endanger the employee's health, safety or well-being. In most cases, a worker's refusal to perform requested tasks is viewed as insubordination, justifying disci- pline. Thus, try to use the same punishment for similar infractions but be mindful of limited exceptions. Exercise all decisions in this area with care.

7. Instruct company supervisors to avoid confrontations at disciplinary conferences. All meetings should be conducted in a low-key fashion. Other rules to follow include:
• Avoid shouting.
• Inform the employee of the reasons for the meeting.
• Listen to the employee's version of the facts.
• Establish realistic goals and timetables.
• Always be authoritative.
• Never apologize for the decision because this may be construed as a sign of weakness.
8. Use a supervisory pecking order effectively. Some experts recommend involving the direct supervisor at the initial phase of the discipline process. Then, if the issue remains unresolved, the next phase can include the supervisor's manager. Disputes that go beyond this point should be referred to a person not involved in the circumstances (such as a vice president) to avoid charges of bias or subjectivity.
9. Consider suspensions without pay as a final recourse before firing. A suspension without pay may get the em- ployee's attention by notifying him/her of the seriousness of the problem. Also, it may demonstrate fairness to a judge, arbi- trator or jury, since the company gave the employee one last chance to correct deficient performance before discharge.

Supervisor Manuals Some employers issue a "confidential"uals is that their instructions and directives often differ from promises made to employees in company handbooks and manuals.

Counsel Comment #97: When lawyers representing term- inated workers review such manuals, they may gain additional negotiating strength after discovering numerous inconsist- encies. To avoid confusion and varying practices within a company, consider eliminating supervisor manuals. If you do use them, be sure all copies are kept under lock and key and that none can be obtained by non-essential employees since you don't want your supervisors' manuals floating around where they can be read or used by disgruntled employees.