Handling Employee Misconduct & Discipline

Handling Workplace Misconduct and Employee Disciplinary Action

From time to time, employees will engage in conduct that is unsuitable in the workplace. In order to address conduct that is inappropriate, offensive, or dangerous, companies often create a procedure to correct employee misconduct and to address employee discipline. Plans of this nature serve to not only curtail and discourage unwanted behaviors but also to protect the business from lawsuits and frivolous unemployment claims. This article gives a brief overview of this complex and detailed subject. If you need assistance creating a disciplinary action plan or dealing with serious employee misconduct issues, you will want to seek the counsel of an experienced employment law attorney right away.

The Employee Handbook, At-Will Employment & Immediate Termination

Many businesses outline behavioral expectations in an employee handbook and they should also include information on the employee discipline policy in that document. It is important to note that if details of the disciplinary policy are included in the handbook, that publication should also clearly and thoroughly addresses the following aspects of the employer-employee relationship:

  • The disciplinary correction plan does not constitute a contract between the employer and the employee.
  • Texas is an at-will employment state; therefore, the employer can fire an employee at any time with or without cause.
  • The employer may choose to bypass any and all steps of the disciplinary correction process, at its discretion, in order to terminate an employee immediately.

Sometimes an urgent problem merits swift action and a termination must supersede the progressive discipline plan. If the employment-at-will policy has been documented in the employee handbook, workers will understand that termination can come at any time with or without cause.

A Progressive Discipline Plan

Your written progressive discipline correction plan will be a written document that supervisors can refer to in the event employee discipline is necessary. A proper employee disciplinary action plan should help managers handle employee misconduct in a consistent way. It is important that employees who have committed the same or similar offences are treated in the same way in order to avoid allegations of discrimination. Training is vital for anyone who will enforce the plan. That said, if the employer does not intend to follow the steps of a progressive disciplinary plan, do not include one. Doing so will only cause confusion for your employees and trouble for you later. Remember, however, that you ultimately are not legally required to follow a progressive discipline plan – you can always diverge from it when necessary.

We advocate some form of the following progressive disciplinary plan:

  1. First Written Warning

The first step for most discipline issues begins with a written warning. If the employee is behaving in a way that needs to change, their supervisor should discuss the problem with them directly and document the discussion in writing. Typically, both supervisor and employee should sign the document. Often, the individual doesn’t realize there is an issue or how it may affect others. The conversation should always be formal and professional. Be sure to discuss the specific behaviors in question and give the employee clear instructions on what must change. If possible, include measurable goals.

  1. Second Written Warning

If the first written warning did not achieve the desired outcome, the second step in progressive discipline should be a second written warning. The document should reference the first written warning, include details of the conversation about the second written warning, describe the problem, and outline steps for the employee to take. Typically, both supervisor and employee sign the document.

  1. Termination

The final step is termination. Hopefully, the first or second corrective action will be sufficient, and this step won’t be needed. Sometimes termination in necessary, however. A manager should manage the disciplinary process well enough that termination does not come as a complete surprise.

During termination, all the documentation from previous conversations should be together in the employee’s file. Keep the termination formal, professional, and civil. Remember, an employee can use anything said during the process against the employer if he or she chooses to sue. When the termination is complete, a written summary of the incident and the employee’s reaction should be prepared and placed in the file.

** A Brief Note About Verbal Warnings: While verbal warnings can be effective and may be used from time to time, we do not advocate using them as part of the progressive discipline process because there is no written record of the discipline. Memories fade over time and different people can often have different interpretations of verbal warnings. Furthermore, if the supervisor or HR professional that issued the verbal warning leaves the company, you may have no record that an employee was ever disciplined.

Employee Discipline Management

Many businesses find that a progressive discipline plan is an essential and effective tool for handling workplace misconduct. Employers without such plans may find defending discrimination and wrongful termination suits more difficult. Accurate, complete documentation can be the best defense against disgruntled ex-employees. If your company needs help drafting a progressive discipline action plan or managing any other employee misconduct issues, the employment lawyers at Simon Paschal PLLC can help.

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