The goal of discipline is to address and correct misconduct and to modify unacceptable behavior. The goal is not to punish the employee. Discipline should usually be progressive, beginning with the minimum discipline necessary to correct the offense. In addition, consequences should be reasonably consistent with those imposed on other employees for similar offenses. Importantly, never discipline an employee simply for reporting an injury or being injured — doing so could lead to violations of OSHA’s injury and illness recordkeeping requirements or the OSH Act’s whistleblower laws.

The word “discipline” comes from a Latin word meaning “to teach.” It doesn’t mean “to punish.” Keeping this in mind may help in evaluating disciplinary measures.

It is important, however, to give managers some flexibility where discipline is concerned. Some situations will require a certain form of discipline, regardless of whether the first step of progressive discipline has been taken. In other words, a very serious offense — even if it is an employee’s first offense — may require more serious consequences than a verbal warning; the discipline should match the offense.

Caution

Beware post-incident drug testing

OSHA has said that post-incident drug testing can be problematic under the anti-retaliation provisions of the Injury and Illness Recordkeeping regulation, resulting in discouraging workers from reporting injuries, or penalizing them for being injured. However, in a 2018 memorandum OSHA said it can be permissible to perform drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries. In addition, OSHA says the following types of drug-testing programs are permissible:

• Random drug testing.
• Drug testing unrelated to the reporting of a work-related injury or illness.
• Drug testing under a state workers’ compensation law.
• Drug testing under other federal law, such as a U.S. Department of Transportation rule.

When to discipline

If faced with a situation where there is apparent employee misconduct, the first question to ask is whether any discipline is appropriate; that is, whether the misconduct is severe enough to warrant being addressed formally.

If discipline is appropriate, the next question to ask is, are there 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 — of the rule, regulation, or requirement?
4. Has the rule been enforced consistently?

Types of discipline

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), demotions, or termination.

Verbal or written 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.

Document all verbal warnings and keep a copy for future reference. That document may be needed to clarify the exact date and the subject discussed if time passes before a second warning, or if a different manager takes over for the problem employee.

Suspension (with or without pay)

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. Keep written documentation of all suspensions.

Referral to employee assistance program

An employee may be violating work rules because of personal problems. In some cases, the best form of disciplinary action is to refer the employee to 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

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

The final step in progressive disciplinary action, or the result of a serious offense, is termination of employment, or discharge. It may be appropriate to terminate an employee for such things as theft, poor job performance, unexcused absences, harassment of others, violent threats or actions, or repeated unsafe behaviors.

Determining the consequence

Several factors come into play in 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 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 consequence should be, including:

• Nature and severity of the offense;
• Employee’s previous discipline record;
• Employee’s potential for improvement;
• Consequences imposed on other employees in similar situations; and
• 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 upon which it is based.

Best practice

Tips for discipline

• Define who can administer discipline.
• Don’t look the other way. When discipline is first needed, administer it.
• When issuing verbal discipline, make it known to the employee that they are being disciplined.
• Ensure discipline is in-line with any collective bargaining agreements.
• Don’t discipline a legally-protected “whistleblower” or discipline an employee asserting a legal right.
• Document performance issues.
• Document feedback, counseling, and training.
• Use progressive discipline for most offenses.
• Be consistent.