When to discipline

• Determine if the misconduct is severe enough to warrant discipline, i.e., can the discipline be justified?

If faced with a situation where there is apparent employee misconduct, the first step should be to determine whether any discipline is appropriate or whether the misconduct is severe enough to warrant being addressed formally. If you’ve faced a similar situation in the past, how you responded then should weigh into your consideration.

If discipline is appropriate, the next step is to determine if there are sufficient facts to justify the discipline. The key factors to consider include the following:

1. Do the facts establish the employee did — or failed to do — the things claimed?
2. Did the employee’s behavior violate an established rule, regulation, or requirement?
3. Did the employee know — or should have known —the rule, regulation, or requirement?
4. Has the rule been enforced consistently prior to this incident?

When performance is the issue, it’s important for employers to consider why an employee’s performance may not be where the company expects it to be. Some questions to consider include:

• Does the person actually have the skills or capabilities to meet the company expectations?
• Has the person been formally trained in the problem area?
• Has the person had an adequate practice/orientation period?
• Has the employee recently taken on new responsibilities?
• Have other employees with similar skills been able to meet expectations?
• Is the performance deficiency within the person’s control (i.e., adequate equipment provided)?
• Has management clearly communicated expectations?
• Are there personal problems affecting the employee’s performance?

Answering these questions may help you determine underlying causes of the employee’s performance problems and help you in developing an effective corrective action plan.

Progressive discipline

• Progressive discipline is discipline that increases with repeated violations, starting with warnings and culminating in termination.

Most employers follow a policy of progressive disciplinary action. Repeated violations lead to increasingly severe corrective action, culminating in termination.

Consequences for misconduct can range from warnings (oral or written), to short suspensions (generally 14 calendar days or less), long suspensions (usually more than 14 calendar days), demotion, or termination.

Determining the consequence

Several factors come into play when determining an appropriate disciplinary action. Included among them are the basic concepts of corrective, progressive discipline. That is, penalties should be selected with the intent to apply the minimum discipline likely to be sufficient to correct the offense. Additionally, fairness and consistency must be considered when determining disciplinary consequences.

Penalties should be reasonably consistent with past discipline administered in similar situations against employees with similar records. This means that employers should carefully weigh a number of factors when determining how severe a disciplinary consequence should be. These factors include:

• The nature and severity of the offense,
• The employee’s previous discipline record,
• The employee’s potential for improvement,
• The consequences imposed on other employees in similar situations, and
• The disciplinary guidelines or policy.

Verbal warnings and other informal discipline can usually be given without undue formality. For more serious discipline, formally notify (in writing) the employee of the discipline being proposed and the incident(s) or conduct that necessitated this corrective action.

Employers must be careful to avoid disciplinary actions that could possibly be interpreted as discriminatory in nature. Discriminatory acts are any actions taken or treatment given because of a person’s age, sex, race, or other protected characteristics.

Disciplinary meetings

• Disciplinary meetings should be held with all necessary parties present. These may include immediate supervisors, managers, HR representatives, employee representatives, and safety/security personnel.
• The violation or misconduct should be presented with evidence and documentation followed by an opportunity for the employee to tell their side of the story.
• Confidential written records regarding the details and outcomes of the meeting, acknowledgment of the consequences by the employee, and plans to correct the behavior should be kept by all necessary people.

When meeting with an employee to discuss disciplinary actions, it is important to have the appropriate individuals present. These can include: the employee’s immediate supervisor, manager, human resources department representative, employee representative, or safety and security personnel.

At the meeting, the alleged rule violation should be explained with evidence and documentation presented. The employee should be permitted to discuss their side of the story. The employee’s arguments should be taken into account before a final decision is made regarding disciplinary action.

Keep written records to show that the:

• Complaint was formally presented to the employee.
• Employee signed a statement acknowledging the complaint.
• Employee responded to the complaint.

Once an employee has been informed of the disciplinary action to be taken, management should make sure the employee fully understands what they are expected to do to correct their behavior.

If an employee refuses to sign an acknowledgment, inform them that signing does not indicate agreement or admission of guilt, but simply shows that the topic was discussed with them. If the employee still refuses, the manager or supervisor may inform them that their refusal to sign will be noted and may be considered insubordination. A poor attitude does not indicate a willingness to correct the situation.

It is important to maintain confidential files of all written records concerning disciplinary action cases. It may be appropriate for the HR department to keep these files.

In writing

• Whatever the disciplinary policy is, it should be in writing and provided to all employees.

Whatever the disciplinary policy is, it should be in writing. Companies should clearly state work rules and guidelines and specific disciplinary actions that can be taken for violations of those rules and guidelines. The policy needs to be provided to all employees. In fact, it is a good idea to have all employees read and sign a statement that they have read, understand, and will comply with policies and procedures.

Be careful, however, that your written policies do not limit flexibility or create obligations on the company. For instance, if progressive disciplinary steps are described, include a statement that the policy does not obligate the company to follow the steps in sequence.

Although discipline should be consistently applied, unique situations may require flexibility in the way you administer it. Failing to stipulate that your organization reserves the right to diverge from the steps outlined in the policy could create the impression that employees are guaranteed, for example, a certain number of warnings before they could be fired. This could conflict with the at-will employment relationship.

Define discipline

• Define the word “discipline” for your company to make sure the term is objective and in compliance with policy.

The word “discipline” should not be used lightly in the workplace. Only use it for specific, defined situations. For instance, one company may define “discipline” as “action which is recorded in the employee’s personnel file, i.e., written reprimand, suspension, reduction in pay, or termination.” Another company may include “verbal reprimands by a supervisor” in its definition.

By defining “discipline” you are taking the guesswork out of the process. The goal is to make certain that discipline is objective, in compliance with stated policy, and carried out effectively and efficiently.

Purpose of discipline

• To goal is to correct misconduct, not to punish the employee.

The goal of discipline is to correct misconduct and modify unacceptable behavior. The goal is NOT to punish the employee. Discipline, if imposed, should usually be progressive, beginning with the minimum discipline necessary to correct the offense. Of course, some misconduct may be so serious that the first step is a high level of discipline or even discharge.

Types of discipline

• A policy of progressive discipline where the employee is informed of the offense, the expected behavior going forward, and the next consequence that will be imposed if the behavior does not improve.

Most employers follow a policy of progressive discipline, where repeated violations lead to increasingly severe corrective action, culminating in termination.

Penalties for misconduct can range from warnings (oral or written), to short suspensions (generally three days or less), long suspensions (usually more than three calendar days), demotions, or termination. The exact progression is up to each individual employer to define.

When an employee receives any one of the disciplinary steps, that employee should be informed of the offense, the expected behavior going forward, and the next consequence that will be imposed if the behavior does not improve.

Warnings

• Employers should keep a copy of all warnings, including notes about verbal warnings.

Warnings are the most lenient form of progressive disciplinary action in which the employee receives a verbal or written warning to stop the unacceptable behavior. The warning may list actions needed to be taken to correct the behavior and the consequences for repeated violations. Employers should keep a copy of all warnings, including notes about verbal warnings.

Suspension

• Employers must inform employees of the reason for a suspension and keep a written document of all suspensions across the company.

In some cases, it is in the company’s best interest to remove an employee from the workplace pending an investigation or as a corrective measure. When issuing a suspension, be sure to inform the employee of the reason for the suspension, the duration of the suspension, expected behavior following the suspension, and the consequences for repeated violations. Keep written documentation of all suspensions.

Referral to employee assistance program

• If an employee violates work rules because of personal problems, it may be advisable to offer the employee the opportunity to use an employee assistance program (EAP).

An employee may be violating work rules because of personal problems. In such cases, it may be advisable to offer the employee the opportunity to use an employee assistance program (EAP). It may be appropriate to use other forms of disciplinary action (warnings, suspensions, etc.) in conjunction with the referral. Employers should maintain records of all referrals.

Transfer or reassignment

• Employee behavior may improve through transfer or reassignment in conjunction with other disciplinary action.

An employee’s behavior may improve through transfer or reassignment to a different work area. Other forms of disciplinary action may be used with the transfer.

Termination

• It may be appropriate to immediately terminate an employee for such things as theft, poor job performance, harassment of other employees, or violent threats or actions.

The final step in progressive disciplinary action (which may also be an employer’s immediate response to a serious offense) is termination of employment or discharge. While almost any offense could eventually lead to termination, it may be appropriate to immediately terminate an employee for such things as theft, poor job performance, harassment of other employees, or violent threats or actions.

Determining the penalty

• Penalties should be selected with intent of applying the minimum discipline likely to be necessary to correct the offense.

Several factors come into play in determining an appropriate penalty. Included among them are the basic concepts of corrective, progressive discipline. That is, penalties should be selected with intent of applying the minimum discipline likely to be necessary to correct the offense. Second, fairness and consistency must be assessed. Penalties should be reasonably consistent with the discipline administered in similar situations against employees with similar records. This means that employers should carefully weigh a number of things in determining how severe a disciplinary penalty should be, including:

• The nature and severity of the offense,
• The employee’s previous record,
• The employee’s potential for rehabilitation,
• The penalties imposed on other employees in similar situations, and
• Existing disciplinary guidelines or policy.

Who can discipline

• Your discipline program should spell out who can administer what type of discipline, especially in instances of less formal measures.

It is important that your discipline program spell out who can administer what type of discipline. This is extremely important where less formal measures, such as verbal warnings, are concerned. Is a supervisor’s admonishment of an employee considered discipline? Are only verbal reprimands from specific members of management considered “discipline” in terms of the discipline policy?

Make disciplinary meetings count

• Make meetings count by including the appropriate people, explaining the alleged violation with evidence, and keeping a written record.

When meeting with an employee to discuss disciplinary action, it is important to have the appropriate people present. The appropriate parties will depend on the nature and the severity of the offense, as well as the stage you are in within you progressive discipline system. Parties to have present may include the employee’s immediate supervisor, manager, human resources department representative, employee representative, and/or safety or security personnel.

At the meeting, the alleged rule violation should be explained and evidence and documentation presented. The employee should be permitted to discuss his or her side of the story. The employee’s arguments should be taken into account before making a final decision about disciplinary action.

Keep written records to show that the:

• Complaint was formally presented to the employee.
• Employee signed a statement acknowledging the complaint.
• Employee responded to the complaint.

Don’t discriminate

• Discriminatory acts are those taken because of a person’s sex, race, age, or other protected characteristic.

Employers must be careful to avoid disciplinary actions that could be interpreted to be discriminatory. Discriminatory acts are those taken because of a person’s sex, race, age, or other protected characteristic.

Adhere to union employees’ Weingarten rights

• While union employees have the right to have a representative present during an interview that could lead to disciplinary action, a few key restrictions apply.

Union employees have the right to have a representative present during an interview that could lead to disciplinary action. However, a few restrictions apply:

• The Weingarten right applies only to union representatives. It does not apply to attorneys, non-employees, or supervisors. In one case, an employee requested a friend who worked out of his home, 120 miles from the place of employment. The court found that the employer’s refusal to allow the presence of this individual did not violate the Weingarten right.
• Organizations are not obligated to remind an employee of Weingarten rights. However, employees do have the right to know the subject of an interview.
• The requested union representative must be available. An employee cannot delay an interview to wait for an unavailable representative. If the preferred representative is not available, the employee must choose another. In one case, an employer refused a request for a union steward because the steward was on a lunch break. The court ruled that this was a violation because the steward was on the premises and was scheduled to finish the lunch break in 15 minutes. Therefore, the steward was “available.” Unfortunately, the court did not define availability beyond this ruling.
• Simply informing an employee of disciplinary action, without conducting an interview, does not violate the employee’s Weingarten rights.

Tips for discipline

• Keep these tips in mind to ensure appropriate discipline etiquette.

• Determine who can administer discipline.
• Don’t look the other way. When discipline is first needed, administer it.
• When a verbal warning is part of the disciplinary process, make sure the employee knows that they are being disciplined.
• Consider whether employees are “at will” employees (this will depend on state law and whether a contract is in place for the individual’s employment). Terminations may be less subject to challenge for at-will employees.
• Ensure discipline is in line with any collective bargaining agreements.
• Consider in advance whether discipline could be considered retaliatory for an employee’s participation in any kind of legally protected activity.
• Keep in mind that your policies, employee handbook, etc., may create contracts.
• Document performance issues.
• Document feedback, counseling, and training.
• Use progressive discipline for most offenses.
• Be consistent.

Establishing goals

• Performance appraisals are a great time for managers and employees to review or establish individual-level goals that fit into the company’s broader objectives.
• Setting goals is an effective way to make employees feel valued, challenged, and take pride in their work and their workplace.

Goals for performance

Performance appraisals are a great opportunity for employers and employees to collaboratively review or establish both individual and company-wide goals. During an appraisal, the employee should come to see how their tasks and performance fit into the broader goals of the company. Any individual goals that are set for the employee should be tailored to mesh with the company’s objectives. Communicating to employees how their job performance and goals fit into the bigger picture for the company instills in them feelings of mutual value and pride in their day-to-day work.

To help establish clear and realistic goals for employees, the appraiser may want to review each employee’s training, experience, skills, and qualifications, along with his or her job performance since the last appraisal. Ideally, this should be done prior to the formal appraisal. The appraiser may also want to consider this information in relation to an employee’s career opportunities within the company, or to help anticipate any obstacles that may exist in their future development.

Communicate goals, expectations

• Appraisers and employees should work together to set goals that are challenging and realistic.
• Organizations should determine what is needed to help employees achieve the goals they have set.
• Like goal-setting, communicating expectations of employees is a collaborative process that benefits from both appraiser and employee input. Clearly reviewing and discussing expectations lets employees provide feedback about their work performance and lays a solid foundation for future performance appraisals.

When setting goals in a performance review situation, the appraiser should work with employees to select goals that are challenging, yet still reasonable for them to achieve. It is beneficial for both the employee and the company to discuss what is needed to achieve the goal (time frame, resources required, and conditions in which the goal can be achieved). The more specific the plan is, the less ambiguity employees will encounter when determining what they must do to achieve their goals within the organization.

Aside from setting goals, the appraiser also needs to clearly communicate what the expectations are for each employee. This process will help to make future employee performance evaluations more straightforward. Expectations, as opposed to the goals, often focus on specific behaviors relating to a range of situations and tasks, rather than the broader framework often used to achieve goals.

Some of the information regarding expectations may be found in job descriptions. However, some expectations may be more detailed or nuanced than that information provides.

Expectation-setting is an area where an employee may be able to provide some input. Instead of an appraiser or manager dictating what work should be done, they may want to allow the employee to provide their own insight into the functions of their position to better understand possible expectations. In fact, some companies allow for employee input prior to meeting with a supervisor or appraiser in order to better address their feedback.

How to conduct a performance appraisal

• Performance appraisals are a means to measure an employee’s performance, determine individual strengths and weaknesses, set objectives, and identify training needs.
• Appraisals work best as two-way communication tools, in which employees should feel free to provide feedback or express opinions.
• Performance reviews usually occur annually, around an employee’s hiring anniversary or according to the company calendar.
• It is useful for an HR representative or other non-partial third party to be present at the appraisal to take notes and mediate, if necessary.

A performance appraisal is a means to:

• Review and measure an employee’s performance.
• Determine individual strengths and weaknesses.
• Set individual objectives in line with corporate objectives.
• Identify any additional training needs.

Appraisals are meant to be two-way communication tools. Employee feedback can often be instrumental in determining business-related decisions or strategies.

Managers or supervisors may find themselves communicating with some employees more than others about performance issues. If there are employees whose job performance is borderline, a performance appraisal is a good place to encourage and guide them.

Generally, performance appraisals occur on or around an employee’s hiring anniversary or coincide with the company business calendar. Reviews may be done informally with a casual meeting, or by simply completing an evaluation form. However, a face-to-face conversation is always suggested.

When conducting the appraisal, a manager may want to have a third, non-partial party in attendance, such as a human resources professional. This allows supervisors and managers to focus on the communication aspect of the meeting while the HR professional takes notes and ensures the appraisal is being performed properly. Any notes or additional documents related to the employee appraisal meeting should become a part of the relevant employee’s personnel file.

Review goals and objectives

Every company has goals and objectives. Often, there may be one main goal the company is striving towards, but it is undoubtedly supported by countless smaller goals along the way. The purpose of employee appraisals should always be to help each individual employee improve their performance, recognize their value, and walk away feeling motivated to achieve their individual goals as well as the goals of the organization. Added up over many employees, achieving these outcomes can significantly benefit an entire company’s performance.

Employee objectives need to be:

• Fair
• Accurate
• Timely
• Realistic
• Clear
• Measurable
• Specific

Communicating clear goals and objectives to work towards lets employees know precisely what is expected of them, while also giving managers and supervisors a straightforward method to measure employee performance. Before meeting with employees to discuss their performance, appraisers can review what each employee has or has not accomplished and consider ways to improve their direction, productivity, and support.

Keep memory-jogging notes

Companies may hold performance appraisals annually, bi-annually, or even quarterly. Much can happen during the time in between appraisals as employees take on new tasks, improve their skills, or encounter new struggles in challenging situations. It is important for supervisors and managers to make note of employee performance periodically throughout the year to help ease the evaluation process. Even a paragraph or two recorded every few months goes a long way towards improving the substance and clarity of performance appraisal meetings.

Compile documents

One of the most important documents to have close at hand during an appraisal is the employee’s job description. Their performance should fit the description. If that is not the case, the description may need to be revised to reflect any new or altered duties or competencies.

It is always encouraged to end a performance appraisal meeting on a positive note with praise, encouragement, and support. At the end of the day, most employees sincerely want to do a good job and will accept new challenges and opportunities to improve their performance.

Motivating employees

For more information on motivating employees, click here.

Delivering negative feedback

• Giving negative feedback may seem intimidating, but it is crucial to helping employees improve and progress in the workplace.
• Appraisers should avoid vague critiques. Instead, they should give specific examples and offer concrete ways the employee can bolster their skills or remedy shortcomings.

Delivering negative feedback can often be challenging or intimidating, but it is one of the most important parts of an effective performance appraisal. If an individual employee is not keenly aware of the areas, skills, or behaviors they need to improve on, they will have a difficult time progressing or meeting future goals and expectations.

As with most feedback, it is important that negative feedback be given in a constructive way. Appraisers should steer away from giving vague feedback that could lead to more questions than answers. Instead, they should consider giving the employee concrete ways to improve in the areas in which they are falling short. For example, providing a list of helpful business writing workshops may be an effective solution for an employee struggling with written communication. By providing tangible improvement suggestions, employees are more likely to feel motivated and optimistic about their future success.

Verbal or written warnings

• Warnings are the initial step in progressive discipline. Whether written or verbal, warnings should state the actions needed to correct misbehavior and the consequences for repeated violations.

Warnings are the most lenient form of progressive disciplinary action. An employee will receive a verbal or written warning to stop the unacceptable behavior. The warning may list actions needed to be taken to correct the behavior as well as the consequences for repeated violations. A copy of all warnings, including notes about verbal warnings, should be kept.

Notes on verbal warnings do not need to be extensive and may be retained in the supervisor’s files rather than being placed in the employee’s “official” personnel file. The record should include the date of the warning and the nature of the discussion. For example, “On May 22, 2012, Katherine Smith arrived 15 minutes late. I delivered a verbal warning and pointed out that this was the third time she has been late this month. She agreed to arrive on time from this point forward and acknowledged that she understood the next such incident will result in a written warning being placed in her file.”

Suspension (with or without pay)

• Suspensions are necessary when it is helpful to remove an employee from the workplace as a corrective measure or while an investigation is ongoing.
• The employee should be informed of the reason for the suspension, its duration, and the expected behavior following the suspension.
• Suspensions can be either paid or unpaid depending on circumstances, company guidelines, or outcomes of investigations.

In some cases, it is in the company’s best interest to remove an employee from the workplace pending an investigation or as a corrective measure. When issuing a suspension, be sure to inform the employee of the reason for the suspension, the duration, the expected behavior following the suspension, and the consequences for repeated violations. Written documentation of all suspensions must be properly kept.

If an employee is suspended pending an investigation of misconduct, employers commonly wonder whether the time should be paid. Suspensions are generally considered punitive, and if the investigation confirms the employee’s misconduct, the days of suspension would be unpaid. Many companies choose to clarify that if an investigation shows that the employee did not act inappropriately, the employee will receive wages for the days of suspension (or perhaps will be allowed to use vacation). Managers should coordinate with their payroll/benefits departments whenever time off is involved.

If the misconduct is serious enough to justify termination, the date of termination should be the date that the decision was made upon concluding the investigation. A termination should not typically be back-dated to the first day of suspension because, at that point, the employer did not yet have a documented cause to terminate.

Administrative leave

In some cases, it may be necessary to place one or more employees on administrative leave while an investigation is pending. Administrative leave is generally not a punitive measure, but rather, is commonly done when investigating claims of discrimination or harassment, since it may be necessary to separate the alleged offender from the alleged victim until the credibility of various witness statements or further evidence can be evaluated.

Additionally, administrative leave may be necessary for other types of workplace investigations, such as evaluating possible theft or waiting for the results of a drug test. Since the company won’t know if the employee violated a workplace policy until the investigation is complete, questions undoubtedly arise as to whether the administrative leave should be paid or unpaid.

In these instances, as with suspensions, the company could explain to the employee(s) that payment for their time on leave may depend on the investigation outcome. For instance, if the company determines that no violation occurred (or that the degree of violation did not justify an unpaid suspension), the involuntary leave time will be paid. However, if the investigation discovers that the employee engaged in conduct that would in fact justify an unpaid suspension, the administrative leave may be deemed part of that suspension and would subsequently be unpaid.

All involved employees should also be informed that, whatever the outcome, they will be informed of the investigation’s conclusions and will be given an opportunity to respond before a final determination is made.

Ideally, the investigation can be concluded in a relatively short amount of time (a day or two) and the status of the suspension can be determined before the next regular payday. However, delays can occur for various reasons, such as the need to interview additional witnesses who were not initially identified or the need to wait several days for drug test results.

It may be the case that the timing of a misconduct investigation coincides with payroll processing, and the company must decide whether to process a normal paycheck (counting the suspension as paid time) or record the time as unpaid.

If the investigation outcome is uncertain, the administrative leave should be paid. An employee who is potentially innocent should not suffer a loss of income for several days while waiting for the company to complete an investigation. The employer can impose an unpaid suspension at a later time if the outcome of an investigation concludes it is appropriate.

Of course, employers may also experience situations where the violation is obvious, and the company is only investigating to officially document a decision that has been already made. If the circumstances clearly justify an unpaid suspension (or termination), then administrative leave may be unpaid. In these cases, the employee would still be called back to review the outcome and the consequences — whether this verifies or extends the unpaid suspension, or whether the employee will be terminated based on the investigation results.

Weingarten rights guarantee an employee the right to union representation during an investigatory review.

Transfer or reassignment

• Transfer or reassignment to another work area (often a demotion) may be appropriate in some cases.

An employee’s behavior may improve through transfer or reassignment to a different work area. Other forms of disciplinary action may be used along with the transfer. Often, a reassignment results in a demotion to a lower position. For example, a demotion to a lower position in another area can remove an employee from a position in which abuse of authority had occurred.

Referral to EAP

In some cases, an employee may be violating work rules because of personal problems. In such circumstances, it may be advisable to offer the employee an opportunity to use an employee assistance program (EAP). It may be appropriate to use other forms of disciplinary action (warnings, suspensions, etc.) in conjunction with an EAP referral. Employers should maintain records of all such referrals.

Referrals to an EAP are sometimes part of a “last chance agreement,” where an employee agrees to certain considerations (e.g., attending counseling) and understands that successful completion of a program is a requirement of their continued employment. Failure to meet these requirements may result in termination.

Termination

• Termination is the final step in progressive disciplinary action. It is reserved for the most serious offenses or patterns of misconduct.

Termination (discharge) is the final step of progressive disciplinary action. It is used as the consequence of a serious offense or repeated violations. Common reasons for termination include:

• Theft
• Poor job performance
• Unexcused absences
• Harassment of other employees
• Violent threats or actions