Having a fair and meaningful disciplinary process can be a helpful tool for employers to improve employee performance. In this episode of California Employment News, employment attorneys Meagan Bainbridge and Nikki Mahmoudi share their best practices for implementing effective disciplinary procedures in the workplace.
Watch this episode on the Weintraub YouTube channel.
Show Notes:
Meagan:
Hello, everyone. Thank you for joining us for this installment of “California Employment News,” an informative video podcast resource offered by the Labor and Employment Group at Weintraub Tobin. My name is Megan Bainbridge, and I’m a shareholder in the firm’s labor and employment group. And today, I’m joined by my associate, Nikki Mahmoudi. If you will join us at our seminar last week, you will recall that we discussed some of our best tips for addressing and improving employee performance. Today, Nikki and I are going to expand on that and specifically discuss and address implementing effective disciplinary procedures and policies. Nikki, can you start by telling us a few tips for ensuring a fair and meaningful disciplinary process?
Nikki:
Of course. When it comes to employee discipline, it’s important to remember why you’re doing it. The whole purpose of disciplinary action is to correct, not punish. That creates a better work staff and boosts employee morale. For a fair disciplinary process, you want to make sure to; one, notify employees of expectations that can be through your policies, job descriptions, etc. Two, you want to make sure to not avoid issues until they grow. You want to address those issues head-on. You don’t want to be in a situation where you have an employee who wasn’t performing so well, but you’ve been giving them glowing reviews, and suddenly you want to terminate them, but you have nothing to show for it. So, address those issues head-on. Three, you want to make sure to provide training where appropriate, and four, make sure the punishment fits the crime. And when we’re talking about that, in choosing your form of discipline, you want to make sure to ask yourself a few questions. What corrective action or improvement do you want to see from the employee? Is it a big or small issue? What’s the appropriate form of disciplinary action in this case? Think about if an employee has been late one day versus six times and how that could be different and how you interact or discuss that with them. You want to think about what are your company policies? Have employees in similar situations been disciplined? Is the employer’s situation capable of rehabilitation? And is the employee’s conduct placing the employer, you, at risk of legal liability? Discipline and Employee. Megan, can you talk a little bit about other considerations when disciplining an employee?
Meagan:
Yeah. Well, generally, disciplinary actions should be consistent, they should be timely, and they should be objective. There are a number of considerations to be made when disciplining an employee. First, what’s the nature of the problem? Is it a performance deficiency, misconduct, policy violation? What’s the issue at hand? Because different issues are going to mandate different actions. You’re obviously going to take a different action against someone who was tardy than someone who was caught embezzling money. Those are pretty extreme, but I think you understand what I’m trying to say. Second, what are the implications? In other words, is this the first in a long line of dominoes of some actions taken? You’re also going to want to consider whether the employee has a prior record regarding the same or similar issue. An employee with no previous issues is likely to be treated differently than an employee with repeated issues. This is okay, but we just have to be able to explain why we are taking different actions. Could the issue be caused by a protected classification or a protected activity of an employee? Is there a disability possibly at play, or was there a recent protected activity? If that’s the case, It’s possible that this issue could be caused by that protected classification or protected activity. In that case, you’re going to want to stop and you’re going to want to evaluate whether discipline is appropriate at this time or whether further investigation is needed to find the root cause of the issue. But in the end, it’s important to remember that discipline should be consistently applied across the company. It’s important to make sure that similar infractions are treated similarly. If one employee is disciplined for an issue and another is terminated, the becomes why. Objective and consistent discipline is important as it helps rebut an allegation that one particular employee is being treated differently from another based on some protected class. Lastly, it’s important that discipline is timely documented. You can find a link to a previous episode we did on this series in the link below. But overall, the key is not to rush but to take swift action. Even if a disciplinary action is done verbally, document it. His delayed documentation of performance and attendance or other sorts of issues increases the risk that an employee engages in a protected activity first, which will necessarily complicate any disciplinary measures and increase the risk of a retaliation claim.
Nikki, do you have any additional tips for employers responsible for disciplining employees?
Nikki:
Of course. Really, the key is discipline shouldn’t come as a surprise. Again, going back to our example of an employee who had poor performance issues from the very beginning, and nothing was done. You want that employee to know from the beginning what’s that issue so they understand what they need to do and how they can get better. How does that work? That comes with documentation, that be performance, attendance problems, performance evaluations, counseling, documenting behavioral problems, policy violations, disciplinary actions. Really, the key is document, document, document. When you discipline employees in a uniform manner, then they’ll know what to expect. So again, consistent practices. How you treat one employee when something happens, you want to make sure to, to the extent possible, keep it consistent with other employees. You want to make sure to explain in writing the consequences of continued performance or behavioral problems. That way, the employee knows, again, this is what I need to do, and if I don’t do it, this is what will happen. When disciplining an employee, you also always want to make sure to, one, clarify to the employee the behavior that’s expected and that of which is not acceptable. Two, explain the consequences of violating these policies and expectations. Three, provide prompt specific feedback to employees when they violate those policies and expectations. I guess lastly, also provide specific corrective action to be followed. Again, that way the employee knows exactly what they need to do when they need to do it. Last thing to remember is it’s very fair to fear the risk of retaliation claims. The moment an employee is terminated or let go, that risk opens up. But it shouldn’t paralyze you as an employer from properly disciplining your employees. When we’re talking about an adverse employment action, it’s retaliatory if it’s taken because the employee engaged in a protected activity. If you as an employer are going to take disciplining or action against an employee who’s engaged in a protected activity, you as the employer want to be prepared to articulate, and again, having that documentation helps, the legitimate non-retaliatory reason unrelated to the protected activity that supports that disciplinary action.
Meagan:
That’s right. Thanks, Nikki. That’s it for now. You can continue to find our video series and podcast through the lelawblog.com or on Weintraub Tobin’s YouTube channel. Thank you everyone for joining us, and we look forward to reconnecting with you on the next edition of “California Employment News”. We’ll see you later.
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