Discipline: 5 ways you can get in legal trouble

by on April 5, 2011 · 0 Comment POSTED IN: Workplace Safety Network

When it comes to disciplining employees, chances are you already know the obvious problems that can set up your company for a lawsuit.

But as safety attorney Adele Abrams notes, underneath each obvious pitfall there is usually a trickier issue.

Here are some examples:

1. Special treatment for VIPS
The obvious: Coming down hard on some people, but not on others. You know treating people the same, regardless of age, race, gender and the like, is essential. Otherwise you could end up explaining your progressive discipline before the EEOC. But most companies don’t pick on people that way.

The hidden danger: Giving VIPs, important visitors, supervisors and managers special treatment and allowing them to violate safety rules.

Example: The safety director gives a plant tour to VIPs but doesn’t insist they wear seat belts. When a worker is later disciplined for not using a seat belt, she claims that she’s been unfairly singled out – and points to the VIP tour as evidence.

Better: Most managers and supervisors have their own PPE, but it’s a good idea to make sure they have plenty of spares, too. Putting on PPE and delivering a quick safety-update (such as wearing seat belts) is an excellent way to create a favorable impression.

2. Mishandling complaints
The obvious: Disciplining after safety complaints. You know that workers who complain about safety enter a legally protected class. Discipline, after that, needs to be handled carefully to avoid even the appearance of retaliation.

The hidden danger: Allowing safety complaints to undermine progressive discipline. If a worker complains about safety, you need to address it. But that doesn’t give the worker a get-out-of-jail free card.

Example: Bill complains about safety violations, but then repeatedly violates the lockout-tagout policy. His supervisor assumes Bill can’t be disciplined. When Bill gets injured, he sues, claiming negligent supervision because his boss failed to enforce the policy.

Better: A lot depends on how the supervisor handles the discipline, because the worker may be sensitive to anything that looks like retaliation. Start with a discussion – thank the worker for bringing safety concerns up in the past, but then explain that the lockout/tagout policy is for everyone. Just make sure that any changes in policy are clearly communicated, (e.g., “We’re going to start enforcing tougher policies”) and that the supervisor is not singling the worker out.

3. Changing policy by accident
The obvious: Lack of a progressive-discipline policy leaves enforcement up to the individual supervisors, and that’s almost guaranteed to result in inconsistent treatment of workers. Most companies think the solution is to write a progressive-discipline policy.

The hidden danger: The company thinks the written policy is legally the policy. Actually, your company policy is what your supervisors and workers do on a day-to-day basis.

Example: One company had a written ladder-safety policy. Workers signed statements that they’d read and understood all safety policies and would follow them in their daily jobs. One day, an OSHA inspector found a worker misusing a ladder and issued a fine. The OSHA Review Commission upheld the fine, saying that the company had no evidence it enforced the policies. Without enforcement, the written policy meant nothing, legally.

Better: Review disciplinary records and ask supervisors if these match the actual policy violations. If not, they’ve accidentally created a new policy.

4. Violating procedure
The obvious: Supervisors don’t follow the progressive-discipline policy. They make exceptions, ignore violations or only discipline in severe cases.

The hidden danger: Supervisors follow the progressive-discipline policy as if it were an automatic series of steps. They always warn verbally, then write up, then suspend. This can set up your company for a lawsuit if a worker commits a violation that puts him or her in immediate danger.

Example: Abrams noted a worker came to work drunk and then hit a fellow worker in a dispute. Should the person be fired or just verbally warned?

Better: Progressive-discipline policies should distinguish between first-offense firings (e.g., lockout violations, threats of violence or intoxication) and less serious ones.

5. Not documenting discipline
The obvious: Supervisors fail to document discipline. Most companies avoid this risk by requiring documentation of any discipline imposed.

The hidden danger: Not documenting verbal warnings, too. Abrams says she’s seen companies get into trouble because supervisors have no record of each other’s verbal warnings, so there’s no way to be consistent.

Example: One worker gets several verbal warnings but nothing happens to him. Another worker, under a different supervisor, is disciplined after one verbal warning. She’s in a protected class and files a disparate-treatment lawsuit.

Better: Supervisors document verbal warnings, and you can review them to ensure disciplinary consistency.

Source: Abrams, www.safety-law.com

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