Progressive Discipline

Q: Our handbook has a brief section on discipline. A member of upper management is now asking me to draft a comprehensive progressive discipline policy. I assume she heard this was the thing to do at a conference she attended and now, after 14 years, believes we can’t live without it. How should I go about putting this together?

A: First off, if your existing policy has been adequate for all these years, I don’t recommend changing it. A poorly implemented progressive discipline policy is worse than no policy at at all, because it could force you as the employer to follow certain steps before you can terminate an employee. In some instances, a prescribed series of steps may not pose a problem, but if an employee does something truly egregious, you don’t want your hands tied. Remember Graves’s Seventh Maxim of Employment Law: More detail in a discipline policy helps the employee, not the employer. That’s why saying nothing at all can be an effective approach. The same holds true for listing types of conduct that can get an employee in trouble. Even when you state a list is non-exhaustive, a court may not see it that way. For that reason MSEC disfavors such lists.

The most common steps in a progressive-discipline policy include:

  • Counseling or a verbal warning as a first step;
  • One or more written warnings as the next step(s);
  • Suspension; and
  • Termination of employment.

However, listing these steps in your handbook can justify the expectation that they will be used in all instances, perhaps in a particular order. For that reason, MSEC only recommends including oblique language such as:

“Disciplinary actions can range from an informal discussion with the employee about the matter to immediate discharge. Action taken by management in an individual case does not establish a precedent in other circumstances.”

As with all disciplinary matters, the employee should be given an opportunity to respond to the discipline. Keeping adequate records of discipline should be the final step in any disciplinary procedure.

MSEC’s attorneys are always happy to help you create and implement an effective disciplinary policy.

These materials are general in nature not to be construed as the rendering of legal or management advice. Send your questions to cgraves@msec.org. Please tell us if you would prefer your identity not be mentioned in our answer.