KemLaw

We’ve written often about the challenges of owning and/or running a business.

It’s not a job for the faint of heart.

Perhaps the greatest challenge revolves around managing a workforce.

From time to time, it’s necessary to discipline employees. It goes almost without saying that employee recruitment and training costs can make employee turnover a huge expense – and one to be avoided wherever possible.

At other times, termination is one’s only reasonable option.

If you are an employer – here are some things to think about when it comes to disciplinary actions and terminations.

1. The purpose of disciplining employees for poor performance (or misconduct) is to encourage better performance (or eliminate bad behavior).
2. While the administration of discipline for poor performance and misconduct must always be consistent and firm, all discipline should be done with the intent to help succeed, not fail.
3. Discipline in the form of written warnings and/or suspensions is typically employed when counseling and/or Performance Improvement Plans have failed to correct the problem, or when the issue involves more serious policy violations or acts of misconduct (even if first time offenses).
4. An employee may always be terminated “at-will” (referring to a clause usually entered in employment agreements) for any lawful reason at any time. Typically, for performance related issues, termination should only occur if progressive discipline has failed to remedy the situation. When the issue involves more significant violations of company policy or willful acts of misconduct (even if first time offenses), progressive discipline may not be warranted or recommended.
5. Discipline (or dismissal) should rarely be a surprise to the employee (unless imposed for a significant, first time infraction or misconduct).

Common shortcomings to disciplinary action…

1. Failing to discipline in a timely manner (“letting things slide”).
2. Failing to thoroughly investigate all the facts, including the employee’s side of the story, before taking disciplinary action. Typically, any investigation will require obtaining signed written statements by the complaining party and any witnesses as to who, what, where, when, why; gathering and reviewing any audio or video footage of the incident; and gathering and reviewing any relevant documentation about any prior counseling/disciplinary action. Do not settle for general or conclusory answers; be sure to get the full picture.
3. Failing to respond to a problem in a consistent fashion (management should respond to similar circumstances in a similar manner).
4. Imposing inappropriate penalties (e.g., serious offenses receive little or no penalty, and minor offenses are punished severely. Aggravating and mitigating circumstances are not properly weighted).
5. Failing to impose discipline in a progressive manner if circumstances appropriately warrant doing so, consistent with any company policy or practice.
6. Failing to identify and evaluate any recent potentially protected activity or positive performance reviews/bonuses/raises.
7. Improper communication of disciplinary action (including having non-privileged discussions about employee disciplinary issues via e-mail). If written communications occur, JUST STICK TO THE FACTS! Do not provide any extraneous personal commentary, opinions or thoughts.
8. Poor documentation and record-keeping practices regarding any disciplinary action taken.

If you’re an employer and find yourself unsure how to handle employee discipline or termination, consider calling on the attorneys at Kainen, Escalera & McHale in Connecticut. We do one thing, and one thing alone – we are a Connecticut employer defense law firm – we work to protect the interests of employers throughout the region. What’s more, each of our Connecticut attorneys has over 20 years of experience in employment law and labor law matters and can provide your business with comprehensive legal counsel ranging from assistance with necessary preventive measures to trial advocacy. Please contact us if we can help you.

The information provided above is made available by Kainen, Escalera & McHale, P.C. for educational purposes only. It is not intended to provide specific legal advice to your individual circumstances or legal questions. You acknowledge that neither your reading of, nor posting on, this site establishes an attorney-client relationship between you and our law firm, or any of the attorneys in our firm. This information should not be used as a substitute for seeking competent legal advice from a licensed professional attorney in your state nor is it provided for the specific purpose of soliciting your business on any particular matter. Readers of this information should not act upon anything communicated in it without seeking professional counsel.