The Five Biggest Progressive Discipline Traps to Avoid With Employee Terminations
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The Five Biggest Progressive Discipline Traps to Avoid With Employee Terminations

Having a progressive discipline policy is an essential tool to help your company ward off lawsuits after employee terminations

But just having a policy isn’t enough – not even close. Here are six traps companies fall into when drafting and enforcing PD policies with employee terminations:

  1. Managers who have ‘zero tolerance’
    Identify managers who have an archaic “one mistake and you’re out” attitude toward employee terminations. Such managers will eventually provoke a lawsuit and your company will lose. These managers need their heads turned inside out. We’re no longer in the “command-and-control” 1960s where you could rule with an iron fist and get away with it. Today’s managers need to be trained how to discipline people in steps and document everything they do on the way to employee terminations.
  2. Managers who tolerate ‘hidden dissatisfaction’
    Identify managers who are unhappy with a difficult employee but are afraid to speak up. Practicing avoidance emboldens troublemakers, who will eventually step over the line into egregious behavior and provoke employee terminations. But you’ll have no documented discipline, which makes you vulnerable in court.
  3. Inconsistent enforcement
    Example: We’ve seen cases where companies decide to “give the guy one more chance” after a final warning. That’s bad policy for several reasons. First, it tells the troublemaker that you’re not serious about employee terminations, which virtually guarantees continued problems. Worse, it tells other employees that you’re not serious. Worse still, the next time you fire someone after a single “final warning,” he’ll take you to court and accuse you of favoring the other guy who was treated differently. If the employee you fired is a member of a protected class, you might as well call in the lawyers and settle. A jury will skin you alive. For a jury, the easiest explanation for your inconsistent enforcement is that you discriminated against the plaintiff.
  4. Complicated policies
    Workplace discipline is complicated, so there’s always a tendency to complicate your PD policy. But remember, if employees find it confusing, they’ll use that in court against you: “I read the policy but couldn’t understand it. So I wasn’t adequately forewarned.”
  5. Boxing yourself in
    Your policy language should never lock you in to any one course of action. Never say, “The company will use Progressive Discipline for the violations X, Y and Z.” First of all, what if you forgot something on the list? You’re sunk. Second, you’ll end up in disputes over whether or not what the employee did actually meets the definition of X, Y or Z. Instead, say, “It is the policy of the Company to use PD when the Company deems it appropriate.” That gives you the flexibility to act as you see fit. If you feel you must make a list of violations, mention that the list is “non-exclusive” or say that it “includes but is not limited to….” And don’t suggest that any given violation merits a specific punishment or employee terminations. Keeping it vague widens your options.

Source: Michael Faillace, Esq., Michael Faillace & Associates, New York, NY.

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