Progressive discipline in the workplace

Progressive discipline is a common approach to addressing an issue with employee performance. It is designed to focus on correcting the issue and implementing progressively severe consequences should the issue not be resolved. The last consequence for an employee’s failure to correct the issue is usually termination.

Advantages of progressive discipline

One of the advantages of progressive discipline is that it provides both the employee and employer the ability to avoid that final consequence. Additional advantages include increasing retention by correcting behavior early on and promoting higher performance and productivity.

In case of issues, the practice creates important documentation that may be used to defend the organization in court. It may further encourage a culture of open communication, and active coaching may lead to mentoring opportunities. It gives an employee multiple chances to improve and demonstrates to other employees not only that the employer will take the necessary steps to ensure good performance but also that it is fair in its processes in enforcing standards.

In New York City, a progressive discipline policy is actually required by law for fast-food workers. Under N.Y.C., N.Y., R. § 7-626, fast-food employers must provide a policy that meets specific requirements and follow certain requirements in its application.

Disadvantages of progressive discipline

A disadvantage of progressive discipline, however, is that if the employer fails to consistently apply its progressive discipline policy, it may become vulnerable to claims of discrimination. It is therefore crucial for an employer using a progressive discipline approach to provide clear-cut instructions to managers on the implementation of its policy to ensure consistent application.

Another potential disadvantage to the consistent use of progressive discipline is that it might be quite clear to the employer that the employee is simply not likely to work out. Still, the employer must invest time and resources into assisting that employee before terminating them rather than focusing on finding and developing a better candidate.

Employers should note that, when employee handbooks have included progressive discipline policies, some courts have construed them as creating an implied contract with the employee instead of maintaining the employee’s at-will employment status. That leaves the employer further vulnerable to an action for breach of contract if it fails to follow its policies to the letter.

For example, a Massachusetts appellate court upheld a jury’s judgment for an employee for breach of implied contract when the employer terminated the employee without warning and without following the discipline policy outlined in its employee handbook. The highest court in the District of Columbia has held the use of mandatory words such as “will” and “shall” in a progressive discipline policy create an implied contract to follow it.

Progressive discipline policies

Thus, if an employer chooses to include a progressive discipline policy in its employee handbook, it should be extremely careful with its policy wording. Less is more. A policy should not include specific offenses and potential consequences. It should use permissive verbs such as “may” instead of “must,” “shall,” or “will.”

The policy should provide for flexible application and allow for the skipping of steps in the discipline process. While the traditional steps in the process include a verbal warning, written warning, final warning, and finally termination, an employer’s policy should also provide for immediate termination of any employee. The policy should also include language that the progressive discipline process is not intended to alter an employee’s at-will employment status.

Alternative approach to progressive discipline

An alternative approach is to eliminate the policy from employee handbooks and to provide guidance on how to consistently apply progressive discipline only to management. Management instructions may still be brought up in court in determining whether the employer’s policies were applied consistently. However, if there is no progressive discipline policy in an employee handbook, it cannot factor into an employee’s understanding of a handbook’s at-will employment disclaimer.

Whether it is included in an employee handbook or not, an employer should follow certain best practices in implementing a progressive discipline policy. One of the most important is to provide the employee being disciplined with clear performance expectations and reasonable standards of conduct. They should be communicated effectively to the employee along with the first verbal warning, and the employer should ensure that the employee understands them. Managers may wish to emphasize the positive effects and benefits that will occur when the employee meets expectations.

Documenting progressive discipline

Documentation can be critical. Many successful lawsuit defenses have hinged upon the employer not only following its policies consistently, but the fact it had documentation to include written employee reviews, discussion notes, and signed acknowledgments from the employee. Documentation should focus on specific performance markers and details about the actions that did not meet the employer’s standards.

Many of the same standards that apply to performance evaluations should apply during the progressive discipline process. For example, any description of the employee’s performance issues should be objective and avoid stereotypes.

Written warnings at all stages of the process should contain a statement regarding the previous verbal discussion of the problem and its date. That should be followed by a description of the current situation and the employee’s explanation or response. A warning should conclude with a description of the employer’s expectations and the consequences if the employee fails to correct the problem. Both the employee and the employer should sign the document.

While not required, an employer may also consider setting up a structured performance improvement plan (PIP) that delineates the steps the employee will be expected to take to resolve their performance issues. PIPs may include deadlines and specific goals that must be met to move forward. The manager and employee can work together with active coaching to ensure that all markers are met.

Bottom line

Employers always hope that progressive discipline is not a road they will have to take frequently. Conducted properly and consistently, however, it can prove to be an effective process that leads to opportunities for improvement, coaching, employee trust and confidence, and solid legal protection for the business.