Are You Opening Yourself to a Lawsuit in How You Discipline Employees?

A common pitfall of employers is to narrowly think of discipline as a tool to punish an employee for inappropriate conduct or deficient performance. However, discipline can also serve many other purposes. For instance, discipline can be used to provide employees with information about how their current conduct or performance differs from what is expected. It can be used to motivate and assist employees to change their conduct or performance. Finally, it can also be used to enhance the morale of all employees by showing that inadequate performance or conduct from fellow employees will not be tolerated. Thinking of discipline in a broad context is helpful to keeping a smooth running workplace.

In order to reap the benefits of discipline in a broad context, discipline must be administered in a fair and consistent manner. One method to ensure that discipline is administered in a fair and consistent manner is through the use of “progressive discipline.” Progressive discipline gives an employee notice of unacceptable conduct or performance as well as consequences for their actions. It gives the employee the opportunity to correct the unacceptable behavior in conduct or performance before drastic measures are taken, such as termination. Finally, progressive discipline also ensures that an employer has made reasonable efforts to obtain the employee’s best performance and it gives the employer a written record of accountability. This is important to head off or defend a lawsuit resulting from an adverse employment decision such as a demotion, suspension, or termination. The purpose of this blog post is to emphasize common pitfalls when administering progressive discipline which can undermine the benefits.

Lack of Consistency

An employer must ensure that a disciplinary process is used consistently between employees. Similar situated employees should receive similar penalties for similar offenses. The inverse is also true, major differences in situations or circumstances can justify very different penalties. An employer conducting a disciplinary investigation must use the same investigative method whether the employee being investigated is the CEO or an intern. Furthermore, the disciplinary result must be proportional to the conduct and in line with discipline that has been issued in the past. Failure to be consistent calls into question the fairness of the process and evidence of inconsistency is extremely powerful for an employee looking to bring an action on the basis of discrimination, whistleblowing, etc.

Failure to clearly communicate consequences

A common error many employers make when administering progressive discipline is neglecting to warn an employee of the consequences of further unacceptable conduct/performance at each stage of the disciplinary process. While there are plenty of situations otherwise, it is often the case that a single disciplinary action is not egregious enough to warrant a termination. However, continued disregard for company policies or expectations can culminate in something more serious.

By making it clear to an employee what the consequences will be for a failure to correct poor behavior/performance, if the employee is eventually terminated, the employee would have a difficult time saying that they did not know what was expected of them or argue that they were wrongfully terminated.

Not having policies and procedures in place

This pitfall plays directly into the need to be consistent. Failing to have written policies and procedures is likely to lead to inconsistent discipline decisions. It is important that employers clearly define how discipline will be handled for the benefit of both the employer and employee. While many employers indicate that they use progressive discipline, it is surprising how many do not have a formal or written policy. When there is a lack of a formal policy, employees are often not even aware of the policy. Having known policies and procedures in place helps to ensure that consistent discipline is issued to similar employees in similar circumstances. It is especially important to have policies and procedures in writing if there is more than one individual who makes employment decisions.

Not keeping appropriate records

Appropriately documenting discipline is crucial. If an employer later alleges discrimination or wrongful termination, it is important that an employer can point to records showing that the employee was treated fairly and provided opportunities to improve performance/behavior but failed to do so. Further, memories fade overtime and oral testimony a year or two down the road will not be as strong as records that were written simultaneously to events. Thus, even if an employer did progressively discipline, if it is not recorded, the benefit of progressive discipline is negated by the inability to prove exactly what was said and done. Finally, keeping records is also important to ensure that discipline is implemented consistently.

Too busy to follow through with progressive discipline

There is no doubt that managing employees can be difficult and time consuming. However, the time and effort put into progressive discipline will pay immensely down the road. The outcome of progressive discipline is either 1) an employee performing at peak performance or 2) a termination of the employee with a diminished likelihood of the ability to claim wrongful discharge. A failure to use consistent progressive discipline or take the time to document the record makes it much more difficult to defend a lawsuit that alleges wrongful termination or discrimination.

If you have any questions about creating or implementing a policy of progressive discipline, please contact Labor & Employment attorney Lida Bannink at 651-351-2116, or email at

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