Important Message for At-Will Employers:  Avoid References to “Progressive Discipline”

You should avoid references to progressive discipline in your employee handbook. Period. Similarly, you should avoid references to corrective action or termination in other guidelines in your employee handbook. If you state that something may result in termination in some guidelines, it could create an expectation that employees are only terminated for those specific reasons (and not others) and are no longer at-will. Two employee handbook guidelines in which specific reference to corrective action or discharge is appropriate are your Sexual Harassment policy and your Inspection and Search guideline.

Certainly it is a good practice, generally, to provide timely feedback to an employee whose performance or behavior does not meet job expectations, allowing them the opportunity to correct any deficiencies.  However, there may be times when an employee’s behavior is so egregious that immediate termination is justified—or when two verbal warnings, then one written warning, etc., etc., just does not make good business sense, or creates a health and safety risk for the employee or others.  An employer needs to ensure it retains the necessary discretion to evaluate each situation on its own merits in determining how best to proceed.

Instructive is a recent ruling by California’s Sixth Circuit Court of Appeals (Christine Oakes v. Barnes & Noble College Booksellers, LLC et al.), which reversed a trial court’s summary judgment in favor of the employer.  The Appeals Court allowed an employee, Christine Oakes, to pursue an action for wrongful termination because her employer’s handbook described a policy of progressive discipline, which she alleges was not followed in her case.  This despite the fact that Barnes & Noble College Booksellers’ employee handbook also contained a disclaimer (in all capital letters) and the Company’s code of conduct and ethics stated that employment was at-will.  (Ms. Oakes acknowledged receipt of both documents.)

If you want to say something about Discipline/Corrective Action in your employee handbook, here’s sample language from MSEC’s Employee Handbook Planning Guide:

              Occasionally performance or other behavior falls short of our standards and/or expectations. When this occurs, management takes action, which, in its opinion, seems appropriate.

              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.

When drafting your employee handbook, keep it simple, and make sure to send your handbook to us for review before you finalize and distribute it.