Progressive Discipline Policy Requires Flexibility Written In 

(Published April 21, 2008)

Reprinted from PERSONNEL LEGAL ALERT, a widely read employment law newsletter that keeps HR executives up-to-date on the latest court cases, legal trends, government regulations, and federal legislation that affect the policies you write and procedures you administer.  Click here to view a sample issue, get more information, or sign up for a risk-free subscription. 

If your company has a progressive discipline policy, your employees may expect that they won’t be fired after a first offense. Employees who are terminated without benefit of a company’s progressive discipline policy often cry foul in court, claiming that discrimination motivated their termination.  That is why a well-written progressive discipline policy must build in the flexibility to bypass disciplinary steps and proceed directly to termination when warranted.

In one case, a bank manager was terminated for refunding 31 overdraft fees to two employees’ accounts in violation of company policy.  After her termination, she filed a lawsuit claiming sex and age discrimination.  As evidence, she pointed to the fact that the company failed to apply its progressive discipline policy.  But a court dismissed her claims.  Reason: Company policy did not require the bank to follow a progressive discipline policy for this type of violation, while it had a policy that strictly prohibited the refund practice absent approval.  (Timmerman v. U.S. Bank, 10th Cir., No. 06-1185, 2007)

Progressive Discipline Best Practices 

Employ these progressive discipline best practices in order to give the policy strength and flexibility at the same time.

• Do indicate in the progressive discipline policy that those steps are not an absolute right and that discipline is up to the discretion of management.  Provide employees with examples of situations in which skipping steps and immediately proceeding to termination is warranted, e.g., fighting, stealing, insubordination.  Stress that these are examples only.
  
  
• Do explain that discipline decisions are based on an employee’s entire record.  In other words, an employee who is at step three for past attendance issues does not start back at step one for a current safety violation.
  
  
• Do include a clear disclaimer that reinforces the doctrine of at-will employment and negates the existence of an employment contract. 
  
  
• Do ensure that flexibility runs the other way, when repeating a disciplinary step is preferable to termination.
  
  
• Do be consistent in the decision to skip (or repeat) steps.  A court refused to deny an employee’s age discrimination case even though she had been fired after clear wrongdoing because no other employee had ever been disciplined in any way for the same misconduct.  (Schreiner v. Nordstrom, D.C. NJ, 2006)
  
  
• Do document the reasons for skipping (or repeating) steps in the progressive discipline process.  It’s best when the reason is tied to a legitimate business concern, based on observable behaviors, and consistent with past practice.
  
  
• Do review any manager’s decision to immediately terminate a worker.  The manager may have made a rash decision based on emotions, so an objective eye should ensure the proper decision has been made. 

Related Topic(s): Discipline & Performance Issues - Progressive Discipline, Termination - Wrongful Termination