Nice Idea, But Don’t Promise

The wisdom of implementing a progressive discipline policy – imposing ever greater consequences upon an employee’s repeated misconduct – would seem a personnel management no-brainer. After all, it’s only fair to give an errant but largely productive employee a second or third chance. It would also be poor judgment for management to impose termination, the workplace equivalent of the death penalty, for a first-time minor infraction.

However, implementing a guaranteed and mandatory progressive discipline procedure would create two significant difficulties.

First, such dictated policy contradicts “at will” employment status. “At will” means that either employer or employee may terminate their relationship at any time, for any lawful reason or for no reason at all, with or without advance notice. However, promising workers unconditionally a progressive series of steps of escalating discipline before management could terminate can destroy any “at will” status. Now, an employer would actually have to have a verifiable, just cause to lay off a worker.

Second, a required progressive discipline policy could protect a gross first-time offender from a deserved termination while threatening the safety and security of the remaining workforce. For example, a “no exceptions” progressive discipline policy might protect a worker who commits a violent act causing serious injury from immediate and deserved termination, exposing the rest of the staff to repeat offenses from that individual.

To prevent these harmful consequences, management should specify that:

• its progressive discipline policy is a guideline only and that the company reserves the discretion to adjust the discipline to the offense, including instant termination for a grave first time violation; and

• nothing in the policy is intended or should be interpreted as modifying the company’s previously established “at will” employment relations with any of its staff.

An experienced employment attorney can of course assist on ensuring employee discipline policy and practice are fair to all concerned.

See also, Oh No You Didn’t! Wrongful Termination of At-Will Employees.