Progressive Discipline: Answers to More of Your Common Questions

​This article is excerpted from Chapter 5 of 101 Sample Write-Ups for Documenting Employee Performance Problems: A Guide to Progressive Discipline & Termination, Third Edition (Amacom/SHRM, 2017), written by Paul Falcone. 

When managers are using progressive discipline, they often have a lot of questions. Here are some responses to help HR professionals answer common questions and coach managers in handling progressive disciplinary or discharge meetings. Yesterday, in Part 1, we featured more tips to improve HR/manager communications on progressive discipline. 

1. When I've got multiple disciplinary issues to document, is it better to give the employee separate write-ups or to include the various transgressions in one written communication? 

It's always best to include as much information in one written communication as possible. Otherwise, it will appear that you're creating a barrage of paperwork to excessively punish the employee. 

The example above, like others throughout this book, demonstrates how multiple infractions can be incorporated into one disciplinary write-up. As long as you clearly outline the issues in the Incident Description portion of the template, putting multiple infractions together in one document is perfectly acceptable. At that point, you will have differing Disci­plinary Levels, Subjects, and Consequences for each individual transgression. As long as the employee clearly understands how each consequence relates to each separate infraction, you will have accorded the employee due process.

2. What if I fear that an employee might become violent during a progressive dis­ciplinary meeting? 

Violence in the workplace is a major concern throughout corporate America. Statistics paint a very scary picture of violence on the rise on factory floors and in corporate suites. Disgruntled workers returning to the office after having been discharged or disciplined is a common scenario. 

If you expect a worker to react violently to your message, invite an undercover armed security officer to the meeting. Large security firms have personnel available on a moment's notice for such interventions. Post the security agent within earshot, but be sure that he or she remains unseen (for example, right outside the closed door of your office). The security and safety you'll provide for yourself and other members of your staff should your suspicions prove true are well worth the extra expense. If you're terminating the employee, inform him that he is not to return to company property without your (and only your) express permission. State that this policy is uniformly implemented in all cases of employment separation and that corporate security or building security (if available) will be made aware that he is not to enter the property without a pass. 

Finally, if you suspect that this worker may indeed return to the workplace with a weapon, hire armed security officers for an appropriate amount of time to ensure your work­ers' safety. Statistically, workplace violence often occurs on Mondays, since most workers are terminated on Fridays. Buy yourself added security by ensuring that armed staff is in place to deter such aggression.

3. How long do I have to terminate an employee after an egregious offense like gross misconduct occurs? 

Typically not more than a few days. If you fail to terminate an employee very soon after an offense like gross misconduct occurs, your failure to act may be interpreted by a court as an acceptance of the employee's conduct. The plaintiff's attorney will argue that you condoned the behavior by failing to act on it within a reasonable amount of time and that you should consequently be precluded from changing your mind at a later, more convenient date. 

Since any delay of more than a few days could imply an acceptance of the misconduct, your subsequent discharge of the employee could be challenged. Remember that you can be held to have violated the implied promise of good faith and fair dealing if your decision to summarily discharge the worker appears to be pretext, capricious, or unrelated to business goals or needs.

4. If I have to terminate an employee, when is the best time to do it? 

The best time to terminate a worker is early in the day and early in the week. "Early in the day" makes sense, since you want to remain accessible to the individual if questions arise regarding benefits continuation, unemployment insurance, outstanding 401(k) loans, and the like. More important, people often feel the need for more explanation regarding the com­pany's decision, and your availability is critically important to ensure that the individual has his questions answered and needs met. 

"Early in the week" is also an optimum time because, for the very same reason, you'll want to give the employee immediate access to you the next day, after she's "slept on it." Violent tendencies usually increase if the ex-employee goes over the story again and again in her mind without facts to balance her judgment. Violent tendencies decrease in the face of information and open communication. For example, if an employee is terminated on Tuesday, she can call you on Wednesday and receive clarification or justification of your actions. On the other hand, if she is ter­minated on Friday and is all alone on Saturday and Sunday, she may develop a "vacuum mentality" in which anger grows unchecked. By Monday, a deranged mind may justify doing damage to a former boss or previous coworkers (which is why workplace violence often occurs on Mondays). As a result, you should avoid Friday terminations whenever possible.   

You may also want to look into filing for a temporary restraining order and an injunction against unlawful violence or credible threats of violence by an employee. State laws differ on how this can be done, so consult with legal counsel for guidance.

5. What are the two biggest mistakes that employers make when documenting discipline? 

First, many employers give themselves extra hurdles to jump through by documenting "state of mind" offenses. In an attempt to demonstrate an employee's carelessness or lack of dis­cretion, employers will use qualifying terms like willfully, deliberately, recklessly, purposely, and intentionally. This may help them communicate the depth of their dissatisfaction with the employee's substandard performance; however, it may create an additional burden of proof if they are forced to substantiate their contentions. Therefore, you should avoid mental element qualifiers as much as possible so that you don't have to prove an employee's state of mind at the time a particular offense was committed. Second, many employers fail to realize that disciplinary documentation is legally discov­erable and may be used against them by a current or former employee. For example, if you state, "Your failure to properly . . . has compromised an entire pool of loans," then you are codifying the damage done to the banking institution. That disciplinary document, in the wrong hands, could very easily become a leveraging point to substantiate a plaintiff's claim for damages. 

This becomes even more important in sexual harassment claims. Of course, if an employee engages in activities that, in your opinion, create a hostile or offensive working environment, then you'll want to impress upon him the seriousness of his actions. However, if you state, "You have created a hostile and offensive working environment," that discoverable document could be used by a plaintiff's attorney as clear evidence that harassment did indeed occur. 

To remedy these potential pitfalls, you're best off stating, "Your failure to properly . . . could have compromised an entire pool of loans" or "Your actions suggest that a hostile and offensive working environment could have been created." This way, the responsible disciplinary action that you took won't as easily be misinterpreted as confirmation that wrongdoing actu­ally occurred. Be careful not to let your own documentation incriminate you.  

Paul Falcone (www.PaulFalconeHR.com) is an HR trainer, speaker and executive coach and has held senior HR roles with Paramount Pictures, Nickelodeon and Time Warner. His newest book, 75 Ways for Managers to Hire, Develop, and Keep Great Employees (Amacom, 2016), focuses on aligning front-line leadership teams and on key employee retention. A longtime contributor to HR Magazine, he's also the author of a number of SHRM best-sellers, including 96 Great Interview Questions to Ask Before You Hire, 101 Tough Conversations to Have with Employees, 101 Sample Write-Ups for Documenting Employee Performance Problems and 2600 Phrases for Effective Performance Reviews. 

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