Employment Law

Firing & Employee Discipline 101

Introduction

One of the legal issues that employers face on a regular basis is how to legally discipline and terminate employees when necessary.  In general, most employees are employed at will which means that employers are free to terminate employees for any reason or no reason, with or without notice or cause.  There are some exceptions to the general rule of employment at will, including but not limited to laws that protect employees from discrimination based upon an employee’s status in a protected category, instances where an employee has a specific contract of employment, employees covered by collective bargaining agreements and instances where a termination or discipline of an employee would be considered wrongful under the law, for example in retaliation for the filing of a workers’ compensation claim.  Thus, the once simply concept of employment at will has become significantly more complicated over recent years.  These concepts are outlined in greater detail below and provide a general overview of employee discipline and termination. 

Progressive Discipline

One of the ways that employers provide a framework for disciplining employees is to follow what is known as a progressive discipline process.  What this typically entails is a step by step procedure for discipline which may include a verbal warning, written warning, suspension or other disciplinary action up to an including termination of employment.  The type of conduct involved in the employee discipline will typically govern the level at which the progressive discipline begins.  As an employer, it is important to build discretion into progressive discipline policies to ensure flexibility so that termination may be the first and last step in the disciplinary process when the facts of a particular situation justify such action.  Progressive discipline can help employers to follow a more consistent and organized process in disciplining and terminating employees, which is one of its benefits.  So long as the process is followed consistently and has enough discretion built in to adjust for different circumstances, progressive discipline can be an important tool for employers.

Collective Bargaining Agreement Provisions for Discipline

In situations where employees are covered by a collective bargaining agreement (union contract), often employees are guaranteed certain processes before they may be disciplined and/or terminated.  In these situations, employers have a built-in process that must be followed, and employers also have considerably  less discretion in how and when employees are disciplined and/or terminated.  In these cases, it is critical for employers to know and understand what the collective bargaining agreement requires in terms of steps to ensure that the required processes are followed consistently.

Employee Handbooks

In determining what processes to follow in disciplining or terminating employees, employers must also be aware of what is required or provided for in the policies included in the employee handbook.  Employee handbooks that are found to be sufficiently definite to create an implied contract of employment may legally bind employers to follow the terms and conditions included in the handbook, which can include disciplinary and termination steps and processes.  Ideally employers should have a disclaimer in the handbook which specifically indicates that the handbook is not a contract of employment and also reserves the right of the employer to change or modify policies as needed with or without any particular notice.  Disclaimers are very important to ensure that the employment at will relationship is preserved.

Termination of Employment

As noted above, in general, employers are free to terminate employees at their discretion in instances where an employee is an employee at will.   There are some exceptions to the general rule of employment at will, including instances where an employee is being terminated based upon the employee’s status in a legally protected category, such as the employee’s race or gender.  In instances where a former employee makes allegations of discrimination in connection with a termination of employment, it is important for an employer to be able to show consistency in the treatment of this employee compared with others who are not part of the employee’s same legally protected category.  For this reason, employers are well served to review instances of similar conduct by other employees in the past to ensure that the employee in question is being given consistent treatment.  This type of analysis goes a long way toward heading off potential claims of employment discrimination. 

When an employee is terminated for performance related issues that are well documented or perhaps for an instance of misconduct which is likewise well-documented, employers are generally free to terminate in those circumstances.  However, it is important to note that often even when employers follow appropriate processes, a termination may still be challenged by a legal action from a former employer.  Thus, the reason it is so important to adequately document the decision-making process involved in a termination of employment, and also the underlying facts that brought termination to the forefront as the employer’s chosen course of action. 

Conclusion

One of the most important things for employers to remember when dealing with employee performance issues is to deal with them promptly so that the issues do not escalate into something larger.  Prompt management of employee performance and disciplinary issues also may prevent issues of discrimination in the workplace from presenting themselves.  When employers wait to discipline employees, it typically only breeds additional problems.  The same is true with employee terminations.  Reacting promptly to situations where termination of employment is the appropriate legal option is important for employers to effectively and efficiently manage their businesses.