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What is Progresive Discipline?

While no federal or state law requires an employer to create and follow a progressive disciplinary policy, courts often come down hard on employers who promise progressive discipline but fail to deliver it. In fact, many employee lawsuits stem from the employee’s perception that he or she didn’t get a “fair” deal.

The most reliable way to protect your company from wrongful termination charges is to establish a progressive discipline system and make sure your supervisors or managers enforce it.

A word of caution to Employers: An increasing number of lawsuits have been filed in which terminated employees complained that the employer violated their own progressive disciplinary policy by firing the employee before working through all the rungs on the progressive discipline policy. THAT’S WHY YOUR POLICY SHOULD ALWAYS INCLUDE LANGUAGE ALLOWING YOU TO SKIP PROGRESSIVE DISCIPLINE AND FIRE EMPLOYEES RIGHT AWAY IN YOUR SOLE DISCRETION FOR PARTICULARY EGREGIOUS BEHAVIOR.

While it’s usually your right to terminate an employee at will at any time for misconduct or lax performance, a progressive discipline policy lets you make clear that problems exist and need improvement.

How it works: Your policy simply increases the severity of a penalty each time an employee breaks a rule, policy, or performs poorly. That way, employees won’t be surprised when they reach the end and are fired. By taking the surprise out of the firing, an employer can lessen their exposure to a wrongful termination lawsuit or Charge.

5-Step Model Policy: We have developed a model for progressive discipline. Here are the five standard phases of progressive discipline:

  1. Oral warning/reprimand. As soon as supervisors become aware of performance or behavioral issues they should issue oral reprimands. Supervisors should keep detailed dated notes on the reason for the warning and the employee’s response. Don’t assume managers or supervisors will remember specifics about disciplinary actions years later when a complaint winds its way through court.
  2. Written warning/reprimand. If the problem persists,, supervisors should meet with the worker and provide a written warning that details the problem. The written warning should summarize the issues discussed, set a timeline for action and describe in detail the corrective steps agreed upon. Explain the consequences of continued poor performance. Have the employee sign the form. Place it in the employee’s personnel file.
  3. Final written warning. If the performance doesn’t improve, deliver a final written warning, including possibly a “last chance” agreement. Show the employee copies of previous warnings and have the employee sign the warning.
  4. Termination review. If problems continue, supervisors should notify human resources. In general, supervisors shouldn’t hold solo firing authority. However, to preserve a supervisor’s exempt status under the Fair Labor Standards Act, they should have significant say in hiring and firing decisions.
  5. Termination. If you decide to fire, meet with the employee and deliver a termination letter that states the reason for the dismissal. Make sure your disciplinary actions reflect the reasons for the actions taken and sweep up all prior warnings/discussions so there is no uncertainty why the termination is taking place.

The experienced attorneys at Bellas & Wachowski Attorneys at Law have been advising employers for over 40 years on ways to limit their employment related liability. Please visit our website for further information and contact us for assistance.