Fire Progressive Discipline

​Former employment attorney and author Jathan Janove writes for SHRM Online on how to inject greater humanity into HR compliance. Jathan welcomes your questions and suggestions for future columns. Contact him at the e-mail address at the end of this column.  

In my former career as an employment attorney, I never found value in the conventional approach to employee discipline, which typically involves lengthy and detailed written warnings and tiresome legalese.

Designed to help employers prevent or defend claims, this approach often promotes procrastination in dealing with problematic employees and provides grist for the litigation mill, with plaintiffs' attorneys happily pouncing on inaccuracies and inconsistencies.

There's a Better Way

In a previous column, I introduced the Same Day Summary, or SDS. This could be an effective alternative to conventional progressive discipline.

In the past, I managed the office of a large international law firm. I received reports that one of our associate attorneys, "Sam," was behaving badly. Partners complained that Sam was unreliable, hard to get a hold of and missed deadlines. In addition, staffers complained that he would become angry, demeaning and intimidating, especially when on deadline.

I could have used the firm's standard disciplinary forms to address Sam's behavior. Instead, I scheduled a meeting with him and followed up with an SDS.

Here's what I wrote after our meeting:

To: Sam

From: Jathan

Date: Today

Re: Our meeting this morning

Sam, here's a summary of key takeaways from today's meeting. Please let me know if you think I left anything out or misstated anything.

We discussed the complaints from partners about your turning work in late and being hard to contact. We also discussed complaints from staff, who felt you can be intimidating and disrespectful, especially when there's a last-minute rush to meet deadlines.

I shared with you that as office managing partner, I consider three characteristics to be essential for an attorney to remain employed here: produce first-rate work, be zealously responsive to internal and external clients, and treat everyone at all times with civility and respect.

As I explained, you're clearly capable of first-rate work. It's the other two characteristics that are problematic.

I appreciate your response that you will concentrate on getting assignments done earlier, make sure people can contact you when needed and, when under stress, not take it out on staff.

As I said, I hope that you make major strides in those two areas so your relationship with this firm continues.

I will be checking in with partners and staff and will let you know what progress has been made.

If you have questions or would like to discuss this further, please let me know.

Jathan

In what ways does the approach I took differ from the conventional progressive disciplinary model?

• It's solution-oriented, not punitive or judgmental.
• It's honest, written in the manager's own voice.
• There are no surprises; the document simply summarizes our conversation.
• It's easy for the manager to compose.
• It's a document that can fend off or withstand a claim. However, its purpose is not to document. It's to communicate.
  

Although it lacks the traditional bells and whistles of a written warning and doesn't include the employee's signature, an SDS decreases claim risk. Why? Because employees are more likely to feel they were treated fairly and with respect. The relationship is less likely to become hostile, even if it ends. Anger doesn't rise to the level that it motivates an employee to seek an attorney.

Others Weigh In

I have been teaching, preaching about and using Same Day Summaries for more than 20 years. I reached out to employment attorneys for comment.

When used correctly, the SDS can help avoid litigation between the employee and organization, according to Brian McDermott, employment attorney with Jackson Lewis in Indianapolis. "The beauty of the SDS is the timely and constructive communication to the employee, which is nearly always good practice and policy. If litigation does occur, however, the SDS can and should be used to demonstrate the employee was treated fairly, consistently with other like situations and based on legitimate business reasons."

Paul Buchanan, employment attorney at Buchanan Angeli Altschul & Sullivan in Portland, Ore., stated, "This approach has enormous benefits, both in preserving the quality of workplace relationships and in litigation. It's in the manager's authentic voice and makes sense in the context of the relationship with the employee."

Buchanan explained that the SDS makes the manager's perspective "sympathetic and helps demonstrate that management's interests are legitimate and reasonable and not punitive or just 'backside-covering.' " Such an approach is far more helpful in litigation defense "than bureaucratic, formal, more-punitive performance improvement plans."

Lastly, Buchanan noted, "this type of communication is easier for managers to do, and so they are more likely to actually do it because it doesn't feel false and disruptive of the relationship with the employee."

Camille Olson, employment attorney with Seyfarth Shaw in Chicago, believes that constructive comments and forward-looking communications with employees about their performance are very useful. "I also agree that if those documents were regularly used for positive and constructive feedback, this would remove the taint of receiving such a document, as well as the adversarial nature of the communications generally."

Dustin Dipo, director of people at 1-800 Contacts, cautioned, "At 1-800 Contacts, we're great believers in the SDS. However, there are roadblocks to implementing it. Breaking a long-standing practice of progressive discipline takes time. It's important to be patient if you want this change.

"Managers can get confused and fall into old ways of thinking. A few weeks back, I was asked, 'So how many same day summaries do I give before it's considered a final?'

"You constantly have to re-emphasize the SDS's purpose: open communication and coaching to help change behavior."

If you're persuaded to replace conventional progressive discipline with SDSs, I'd love to learn about your experience.

You can also check out another one of my previous columns, where I make the modest proposal to ban the word "documentation."

Jathan Janove, J.D., is the author of Hard-Won Wisdom: True Stories from the Management Trenches (HarperCollins/Amacom, 2017). He is president of the Oregon Organization Development Network and was named in Inc. magazine as one of the Top 100 Leadership Speakers for 2018. If you have questions or suggestions for topics for future columns, write to JathanJanove@comcast.net.