The SP Opinion: Reconsider Progressive Discipline

Progressive discipline dates back almost 100 years and is considered standard procedure for the vast majority of employers.  If you fall in the majority, have you stopped to consider why you use a progressive discipline policy and whether it is time for a change?

The idea of a progressive discipline policy is to give employees warnings of wrongdoings so that they can correct their deficiencies and have no further issues in the future.  Providing an employee a second or third chance makes common sense.  Perhaps the employee did not realize they were doing anything wrong or just the age old adage, mistakes happen.

Our opinion is not that progressive discipline is incorrect.  Don’t get us wrong.  The majority of our clients utilize a progressive discipline policy and it works great when it is used properly.  Furthermore, in determining the merits of many unemployment claims, the Texas Workforce Commission will ask if the employer utilizes a progressive discipline policy and whether that progressive discipline procedure was followed.  The TWC more often than not will side with an employer who can provide documentary proof of a verbal, first written warning, final written warning, and termination.  This evidences that the employee was given notice that they were violating the company policy and still failed to correct their violation.  Following this same progressive discipline approach is also a great defense in a lawsuit regarding discrimination or retaliatory termination.

So, if progressive discipline works so well in TWC unemployment hearings and litigation, why would we suggest you consider eliminating it?  The reason is because just as effective as it can be in those scenarios, the failure to strictly adhere to a progressive discipline policy can and will be used against you.  The TWC has a very difficult time wrapping its head around a termination that did not give the warnings provided in the progressive discipline policy.  This is true even with the standard language that the employer can choose to skip any or all steps and proceed straight to termination.  Litigation also gets prolonged when a terminated employee can demonstrate the company did not follow its progressive disciplinary policy.  The reason for the failure to follow the policy according to the employee and the employee’s lawyer? Obviously, discriminatory motive or retaliation! It could not possibly be because the employee cost the company a large customer or was so insubordinate that anyone in their right mind would have terminated the employee (note our sarcasm).

The failure to follow the progressive discipline policy also arises in a situation where the company provides written warning after written warning to an employee, but the employer does not want to terminate.  The employee is not the best employee, but they are not the worst; the employee just has to be reminded constantly that the workday starts at 9:00 a.m.  While the employer should be commended for providing written warnings and giving multiple second chances, the failure to adhere to the three strikes and you are out method is almost always used by a plaintiff’s lawyer to show that another employee was treated more favorably than the plaintiff was treated.  To avoid this situation, the employer is forced to terminate an employee that reaches the third strike.

This common failure to follow the progressive discipline, whether due to lack of written warnings or excessive written warnings, is why you should consider changing your disciplinary policy.  For unemployment claims, the TWC typically wants a written policy that is followed.  Having a disciplinary policy that outlines what qualifies as misconduct and that violations of the handbook can result in discipline, including termination, will be sufficient.  The same is true in the litigation context.  A disciplinary policy that does not require certain steps before termination cannot be challenged based on failure to give a written warning before termination.  The same is true in the scenario where an employer provides an employee dozens of written warnings.  There is no policy that states that the employee should have been terminated on warning number three.  This flexibility can be beneficial and a good reason to at least consider if your disciplinary policy gives you more heartburn than relief.

No decision is right for every employer and all employers are different.  We simply encourage you to look at your discipline procedures and figure out if the process you have is truly the right process for you.

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