The Elements of Due Process

​This article is excerpted from Chapter 1 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. This is the first in a three-part series on progressive discipline and its legal considerations.

Documenting poor performance and progressive discipline is as much an art as it is a sci­ence. Unfortunately, most human resources professionals and line managers don't have the time to study the nuances of progressive discipline, workplace due process, summary dismissal, discharge for cause, and the like. Even when that theory is mastered, however, there remains the challenge of incorporating all those ideas into a written memo that adequately documents subpar job performance or workplace conduct.

So it's not surprising that many managers avoid writing up employees like the plague. And without a template to follow and samples to emulate, it's also no wonder that many managers create memos that cannot withstand legal scrutiny. If the objective of any disciplinary system is to create and maintain a productive and responsive workforce, then disciplinary actions, when they occur, should focus on rehabili­tating employees by deterring them from repeating past problem behaviors. It is simply a fact of the modern workplace that you as a manager are charged with this responsibility.

Terminated employees who are successful at winning wrongful discharge claims, on the other hand, typically can prove that they were denied due process—what we call progressive discipline. They successfully argue, with the help of their attorneys, that your company breached its de facto obligation of good faith and fair dealing in managing its employees and in following its own policies. So if you've ever scratched your head about losing a case to an employee who flagrantly disregarded work responsibilities, it's probably because an arbitrator concluded that due process was denied.

In other words, if the step formula outlined in your company's progressive discipline policy is violated, or if you fail to properly notify an employee that her job is in jeopardy, then you may end up on the losing end of a wrongful termination suit. Ditto if you dole out punishment (i.e., termination) that doesn't appear to fit the offense. In such cases, arbitrators may conclude that the misuse of your managerial discretion warrants the substitution of their judgment for yours in the handling of a specific worker. Frequently, that results in a lesser penalty (such as reinstatement plus a written warning instead of termination).

But what about your rights? Shouldn't workers be held accountable for their actions? Don't you retain any discretion in determining who should play on your team? After all, whose company is it?

With the help of this system of progressive discipline, here's how discharge hearings should play out in the future: An arbitrator asks a former employee/plaintiff in a wrongful discharge action, "I see that your former company offered you an opportunity to take part in an EAP program. Did you contact the EAP?" The former employee's flat response is, "No." The arbitrator then asks, "I see that you were encouraged to fill out a section of this write-up regarding your own performance improvement. It's blank, though. Why is that?" The apologetic response is, "Well, I guess I didn't have time."

The arbitrator continues: "I see. Hmm. Your company paid to send you to a one-day off-site training program on conflict resolution in the workplace. Did you attend that work­shop?" The employee responds, "Yes, I did." Finally, the arbitrator closes: "So you attended the workshop that was paid for. Yet you did little else to invest in your own personal improve­ment. And you signed a document showing that you agreed that if you didn't meet the condi­tions of the agreement, you would resign or be terminated regardless of the reasons for your failure . . . I see no merit in your argument that you were denied due process or that your organization failed to make reasonable attempts to rehabilitate you. This case is dismissed."

You'll immediately notice how the burden was shifted to the employee in terms of prov­ing that he made a good-faith effort to become a better worker. To make this fundamental paradigm shift occur, however, you have to provide the employee with resources he can use to improve himself: coaching and commitment, training, and material resources. And that's a win for both sides, since you, the employer, focus on helping your workers and they, in turn, are charged with accepting your invitations to improve.

It all begins with due process—your efforts to ensure that the employee understands what the problem is, what she needs to do correct the problem, what will happen if she doesn't, and how much time she has to demonstrate improvement.

The Elements of Due Process

A legal theory called the job as property doctrine states that employment is a fundamental right of American workers and that the loss of employment has such a serious impact on a per­son's life that individuals should not lose their jobs without the protection of due process as later codified under the Fourteenth Amendment to the Constitution. ⁽See Arthur W. Sherman, Jr., George W. Bohlander, and Herbert J. Chruden, Managing Human Resources, 8th Edi­tion (Cincinnati: South-Western Publishing Company, 1988), p. 442.) Affording due process means recognizing the employee's right to be informed of unsatisfactory performance and to have a chance to defend himself and improve before an adverse employment action (such as discharge) is taken.

This property right protection places on management an obligation to deal in good faith with employees and to take corrective action measures based on just cause (i.e., good reason). This just cause requirement, in turn, mandates that businesses take corrective action measures only for clear, compelling, and justifiable reasons.

But what exactly are the elements of due process?

First, the employee must understand your expectations and the consequences of failing to meet your performance standards. If a write-up merely documents a performance problem without pointing to the consequences of failure to improve, the write-up will lack the "teeth" necessary to meet due process guidelines.

Second, you've got to be consistent in your application of your own rules. Workers have the right to consistent and predictable employer responses when a rule is violated. In other words, problems cannot be corrected on an ad hoc basis without the employer being per­ceived as arbitrary, unreasonable, or even discriminatory. Bear in mind as well that, generally speaking, practice trumps policy. In other words, regardless of what your handbook or policy and procedure manual says, your past practices will be scrutinized for consistency.

In addition, failure to follow through on threatened consequences damages the credibil­ity of your disciplinary system and sets an unintended precedent: If Employee A, for example, was forgiven for making certain mistakes, Employees B through Z may arguably have to be forgiven for making those same or similar errors.

Third, the discipline must be appropriate for the offense. Occasional poor performance or a minor transgression (known as a de minimis infraction) is certainly actionable but probably not cause for termination. An employee's performance track record and prior disciplinary history must certainly be taken into account.

Fourth, the employee should be given an opportunity to respond. Administering dis­cipline without allowing employees to give their side of the story is begging for trouble. Unfortunately, of all the elements of due process that should be incorporated in any write-up blueprint, this self-defense principle is the one that's most often lacking.

Fifth, you need to allow the employee a reasonable period of time to improve her per­formance. Otherwise, your disciplinary actions will appear to be an artificial excuse to get the employee out of the organization.

Several other rules of thumb are important to bear in mind as well when dealing with workplace due process:

• As an employer, you have the right to change your policies at any time. Simply give your employees advance notice of the change, along with its effective date, so that all workers can ready themselves to meet your newly defined expectations.
• Infractions need not be treated identically but should be treated consistently. For example, occasional versus habitual tardiness will typically invoke a different response from the company. In other words, you're not precluded from disciplining Susan who reports to work late on a regular basis just because you didn't discipline Fred who came in late one day last week. Likewise, sleeping on the job can be a significant infraction, but it's certainly less of an issue for a secretary (who may receive a written warning for a first offense) than for a night shift nurse (whose first offense results in a final written warning) or for an anesthesiologist (who is termi­nated for falling asleep during a medical procedure).
• The final incident plays a very significant role in determining how to best respond to any employee infraction: A clean and compelling final incident, in breach of previous documented warnings, makes for a much safer termination should you company later be challenged. Therefore, look especially to the nature of the final incident when considering termination.

This is the first in a three-part series on progressive discipline and its legal considerations. The next installment will be Part 2: The Traditional Progressive Discipline Paradigm. 

Please visit the SHRMStore to order a copy of 101 Sample Write-Ups for Documenting Employee Performance Problems: A Guide to Progressive Discipline & Termination, Third Edition, by Paul Falcone.

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 2016 book, 75 Ways for Managers to Hire, Develop, and Keep Great Employees (Amacom), 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 and 2600 Phrases for Effective Performance Reviews.

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