Employment law is riddled with hidden traps that, if sprung, can be financially devastating for employers. Nowhere is this balance more difficult to strike than in workplace discipline. While a zero-tolerance approach can lead to excessive litigation (sometimes unionization) from disgruntled employees, a lax approach may be seen as condoning serious misconduct. The trick is not to swing too far in either direction.
1. Disciplining without an investigation
As a general rule, do not issue discipline without a fair investigation. If you do, plaintiff-side employment lawyers feast on this material, justifiably or not. Your investigation does not have to be long, involved, or expensive. It just means looking into the facts, questioning the employee and witnesses, and keeping notes until you have reached a justifiable conclusion. Doing so, helps to bootstrap the discipline and will commit the employee to a particular version of events.
2. Investigating without issuing discipline
On the flipside, if your investigation reveals that someone is at fault, it is important to issue formal discipline. Formal discipline must be in writing and include a warning that if the conduct continues, the employee will be fired for cause. Although it may seem trivial now, if it continues, you will be hard-pressed to rely on undocumented misconduct to support subsequent discipline or termination.
3. Conducting a one-sided or biased investigation
A surprising convention exists in workplace investigations where the company will speak to the accused employee last, or sometimes, not at all. There is very little to be gained in doing so. First, the accused employee may admit to wrongdoing at the outset. Second, a fair investigation will actually delve into the accused employee’s version of events to see if it can be corroborated. Third, a fair investigation will not coddle the accused employee or dismiss complaints against them out of hand. Lastly, an early meeting will reduce that employee’s opportunity to explain away other evidence that may be subsequently uncovered in the investigation.
4. Guaranteeing immunity
Some employers are tempted to guarantee immunity to employees who come forward to report misconduct. While that might encourage the free-flowing of information, it will surely inhibit your company’s ability to impose discipline. A nuanced policy will protect employees against retaliation for having reported misconduct, but not allow employees to shield themselves from discipline by self-reporting.
5. Firing for cause without a prior warning
Only the most serious misconduct can be cause for termination without a prior warning. That would include major misconduct such as embezzlement or serious workplace violence or harassment. Employers who fire for cause where none exists, can invite a serious legal battle, extended wrongful dismissal damages, and even sometimes damages for bad faith or unfair dealing.
6. Multiple “Warnings”
One size does not fit all, when it comes to employee discipline. Repeatedly giving the same discipline for the same conduct implicitly condones the conduct because it suggests that the disciplinary penalty will never increase. Employers need to demonstrate that repeated misconduct will lead to escalating levels of discipline, up to termination of employment for cause. That is known in employment law as progressive discipline.
7. Giving reasons for termination without cause
If you are terminating without cause, it is almost never a good idea to give the employee performance or conduct-related reasons for the termination. They do nothing to reduce liability. Usually, these reasons will only serve to elicit an emotional and/or litigious response from the terminated employee.
8. Never firing for cause
While proving just cause for termination may be difficult and rare, this should not dissuade employers from doing so. Firing for cause sends a message that misconduct will not be tolerated, and, where well-founded, will save the company money. That said, get experienced legal advice before asserting just cause. Not all lawyers are created equal, and asserting cause where no provable cause actually exists, can result in punitive damages of $100, 000 or more.