Progressive Discipline and
Its Legal Considerations
Documenting poor performance and progressive discipline is as much an art as it is a science. Unfortunately, most human resources professionals and line managers don’t have the time to study the nuances of progressive discipline, workplace due process, summary dismissal, discharge for cause, and the like. Even when that theory is mastered, however, there remains the challenge of incorporating all those ideas into a written memo that adequately documents subpar job performance or workplace conduct.
So it’s not surprising that many managers avoid writing up employees like the plague. And without a template to follow and samples to emulate, it’s no wonder that many managers create memos that cannot withstand legal scrutiny.
If the objective of any disciplinary system is to create and maintain a productive and responsive workforce, then disciplinary actions, when they occur, should focus on rehabilitating employees by deterring them from repeating past problem behaviors. It is simply a fact of the modern workplace that you as a manager are charged with this responsibility.
Terminated employees who are successful at winning wrongful discharge claims, on the other hand, typically can prove that they were denied “due process”—what we call progressive discipline. They successfully argue, with the help of their attorneys, that your company breached its de facto obligation of “good faith and fair dealing” in managing its employees and in following its own policies. So if you’ve ever scratched your head about losing a case to an employee who flagrantly disregarded work responsibilities, it’s probably because an arbitrator concluded that due process was denied.
In other words, if the “step formula” outlined in your company’s progressive discipline policy is violated, or if you fail to properly notify an employee that her job is in jeopardy, you may end up on the losing end of a wrongful termination suit. Ditto if you dole out punishment (i.e., termination) that doesn’t appear to fit the offense. In such cases, arbitrators will conclude that the misuse of your managerial discretion warrants the substitution of their judgment for yours in the handling of a specific worker. Frequently, that results in a lesser penalty (such as reinstatement plus a written warning instead of termination).