Tips on Disciplining Problem Employees

By: Kari Ann Legg, Labor and Employment Attorney


Tips on Disciplining Problem Employees


            Last month I discussed various tips on hiring and retaining the employees, so this month I thought I would discuss the reverse.


            Disciplining or discharging employees presents the potential of union and employee claims that quickly ripen into costly lawsuits.  An employer may terminate an employee for any reason or no reason, except if a law or an enforceable promise, like a contract, restricts such termination.  however, employee claims, even those without merit, are costly to defend.  Therefore, a legal and practical checklist for employee terminations  should be at the fingertips of management employees.


There are six basic guidelines to follow when disciplining employees.  They are:


1.         Advance Warning.  Forewarn employees of their deficiencies and the disciplinary consequences of their continued failure to remedy those deficiencies.  You should do so in writing.  Without such “proof,” the employer is at risk when the employee claims:  “They never told me they had a problem with me work.  I was just fired!”  Remember, if it is not written down, it did not happen.


2.      Reasonableness Rule.  Confirm that the rule that was violated or the management direction that was insubordinately ignored was reasonably related to the operation of the business; and, the performance requested was that which an employer  might properly expect from an employee.  Without such “reasonableness,” the rule or order may not be enforceable or may be considered to be pretextual.


3.    Investigation.  Before administering discipline, you should make an effort to determine when the employee in fact violated or disobeyed a rule or order.  The employee should be told the nature of the charge and should be given an opportunity to defined.  In addition, the investigation should be conducted fairly, impartially and without discrimination to determine if the employee’s guilt was as charged.  Basic due process considerations can be persuasive and, as a practical matter, help to buttress employer defenses to litigious employees.


4.    Evidence v. Suspicion.  There must be objective and substantial evidence of guilt.  Suspicions and generalities may not withstand challenge.


5.    Uniform Application.  Rules must be applied uniformly and fairly.  If other rule violators have been tolerated, or present employees have even worse records than the offender, the employer’s discipline will be subject to attack.


6.   Level of Discipline.  The degree of discipline should be reasonably related to the seriousness of the offense and the employee’s past record.  Discharge is the ultimate workplace penalty.  If the punishment exceeds the crime, the employer’s actions may fall as excessive.

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