Poor performance, inappropriate conduct, and other violations of company policy and law must inevitably trigger some form of formal employee discipline such as counselling, verbal and/or written warnings, PIPs (performance improvement plans), suspensions, and/or terminations. Because employee discipline exposes an organization to employment claims, a cautious approach and precise documentation are vital to help defend against any claims that arise. This checklist will help you navigate the pitfalls inherent in employee discipline.
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Checklist best practices for disciplining employees
1. Checklist – Best Practices for Disciplining Employees
Updated on: 01/15/2015
Checklist Provided for Use Lexis Practice Advisor by: Barbara E. Hoey, Kelley Drye & Warren LLP
Poor performance, inappropriate conduct, and other violations of company policy and law must inevitably trigger
some form of formal employee discipline such as counselling, verbal and/or written warnings, PIPs (performance
improvement plans), suspensions, and/or terminations. Because employee discipline exposes an organization to
employment claims, a cautious approach and precise documentation are vital to help defend against any claims that
arise. This checklist will help you navigate the pitfalls inherent in employee discipline.
A. Elements of Discipline. When you counsel employers regarding disciplinary issues, you should aim to
ensure that the proposed discipline meets the following standards:
(1) Not Unexpected. The discipline should stem from clearly communicated standards of conduct and
consequences;
(2) Commensurate. The severity of the discipline should accord with the seriousness of the employee’s
infraction and be effective to remedy it;
(3) Fair. In most cases, fairness includes giving the employee a reasonable opportunity to correct the behavior;
(4) Consistent. The discipline should be in line how the company has handled similar circumstances;
(5) Non-Discriminatory. Evaluate this both in terms of protected groups as a whole and the specific
individual(s) at issue; and
(6) Not Infringing on Protected Rights. For example, the discipline should not interfere with the employee’s
legal right to take a protected leave of absence or to raise a protected complaint.
B. Steps to Evaluate the Discipline. You should take the following steps when asked to assess a proposed
disciplinary action:
(1) Review Applicable Company Policies: These include the employer’s discipline policy, standards of
conduct and performance, and other policies that might relate directly or indirectly to the employee’s conduct and
discipline. For example, if the employer seeks to discipline the employee for attendance issues, you should also
review relevant policies such as the company’s attendance, leave of absence, and no show/no call policies. Note that
discipline based on attendance may implicate the FMLA and ADA, as well as similar state and local law.
(2) Consider Documents. Consider the following to determine whether they support or undermine the
impending discipline:
a) Employee’s files;
b) Prior warnings – and, if none exist, determine why;
c) Performance documents, handbook receipts, and training confirmations;
d) Other documents that evidence past conduct, performance, training, and receipt of notices and policies such
as:
i. Awards/commendations;
ii. Raises;
iii. Promotions; and
iv. Acknowledgements of receipt of separately distributed policies (e.g., sexual harassment policy);
(3) Timing of Discipline. Determine the temporal proximity of the discipline to protected activities (e.g.,
taking a leave of absence, filing a complaint or workers’ compensation claim, participating in an investigation);
a) Determine whether a credible basis exists for any discipline imposed close to the employee’s protected
activity. Resolve the question: Why impose the discipline now?; and
b) Determine whether evidence supports the discipline.
(4) Consider Other Relevant Information:
a) Additional details of the infraction;
2. b) The employee’s relationship with his or her supervisor, manager, and/or other employees;
c) Relevant issues within the department and/or business unit;
d) Whether there are witnesses;
e) Whether the employee received relevant training and/or counseling;
f) Whether others have information about the employee and the specific infraction;
g) Who participated in the decision to discipline the employee, and whether the decision-makers are biased;
h) Whether emails or other documents relate to the employee’s infraction and which may not be included in
the employee’s personnel file. Note that supervisors, managers, and the department sometimes maintain separate
employee files;
i) Whether a contract covers the employee; and
j) The significance of gaps or inconsistencies in the information you received, including those contained in
discipline documents you have reviewed.
(5) Consider Similarly Situated Employees. To determine whether discipline is consistent, particularly when
employees belong to a protected group or engaged in protected activity, you should compare evaluations and/or
disciplinary documentation for similarly situated employees with those of the employee. Generally, “similarly
situated employees” include those with similar job content (e.g., tasks, skill, effort, responsibilities, working
conditions, etc.) and minimum objective qualifications (e.g., specialized licenses or certifications).
(6) Determine Need for Investigation. Depending on what questions are unanswered or unclear, you may
conclude that the employer should conduct an investigation into the underlying infraction prior to implementing
discipline.
C. Documenting the Discipline.
(1) When to Document:
a) When patterns of behavior develop;
b) When the employee’s conduct is serious; and
c) Promptly, but not when angry, frustrated, or agitated.
(2) What to Document:
a) Verbal and written warnings;
b) PIPs;
c) Suspensions;
d) Demotions;
e) Other forms of discipline; and
f) Terminations.
(3) Documentation Content. Disciplinary documentation should include at least the following:
a) The employee’s and manager’s names and titles, and their department;
b) Dates including the date the disciplinary document was prepared, the warning given; and the infraction
occurred;
c) A description of the behavior or performance including the policy or other company standard that the
employee violated;
d) The substance of what the employee said when counselled, including specific statements the employee
makes if he or she acknowledges the justification for the discipline (e.g., “I know I shouldn’t have”) or makes
threatening or other improper remarks to the manager;
e) What the employee has to do to correct the behavior and how much time he or she has to do so (if
applicable);
f) Future consequences, which should be clearly stated – particularly when the next step is termination – and
should correspond to the company’s discipline policy and to consequences for other employees;
g) Identification of witness present when warning is given, including his or her name, title, and department;
and
h) Signatures and notations, including:
i. The manager’s signature;
3. ii. Signature lines for the employee and witness (typically, HR);
iii. Notation above the employee’s signature line: “Your signature acknowledges that you received a
[warning/suspension/PIP, etc.] and understand what was communicated and what is expected. Your signature does
not mean you agree with the [warning/suspension/PIP];” and
iv. If applicable, a notation that the employee declined to sign as well as an acknowledgement of such by the
witness.
(4) How to Document. Discipline documents must:
a) Be complete, accurate, honest, and detailed. Avoid exaggeration, opinion, ambiguous or vague wording,
and personal agendas;
b) Be consistent with the organization’s policies, practices, and standards of conduct;
c) Align with the job description (and other performance standards) if the discipline is performance-based;
d) Not reference protected characteristics; and
e) Not suggest any interfere with employee rights such (e.g., right to leave, to discuss terms of employment
(e.g., wages, etc.), to file a claim, or participate in an investigation).
End of Document