Defensive Discipline, Documentation, and Discharge

-This article tracks the defensive disciplinary procedure from rule preparation to the final dismissal.
Contributed by the attorneys who write Maryland Employment Law Letter Whiteford, Taylor & Preston L.L.P.

By Steven E. Bers

Even the best-intentioned disciplinary action presents opportunities for a legal challenge by a contentious employee. Usually the challenge occurs, if at all, at termination, when the employee actually incurs a financial loss. When that occurs, each step of the disciplinary process comes under scrutiny. The process of defensive discipline thus begins at the early phase of rule preparation and continues through the discharge meeting.

Each of you must ensure that your disciplinary rules provide the flexibility and breadth to permit effective action. Then, proper documentation enhances your ability to defend your actions with the stakes raised in discharge decisions. Each writing, or the failure to document, may become significant. Finally, disciplinary meetings must further your interests without creating unnecessary exposure.

In this first article of a two-part series, we''ll track the defensive disciplinary procedure from rule preparation to the final dismissal.

Preparation of reasonable and flexible rules
Some states recognize that policy statements or rules pertaining to when and how employees may be disciplined create employment contract rights limiting the scope of your right to discipline or fire them.

Accordingly, you should review your disciplinary rules and policies as if they were contracts before disciplinary situations reveal deficiencies or unreasonable limitations on your ability to take action.

Avoid the following pitfalls in preparing your disciplinary programs:

Avoid close-ended disciplinary listings. In preparing a list of infractions that can result in disciplinary action, avoid any presentation that suggests the listing is all-inclusive. Inevitably, unlisted conduct that''s contrary to your company''s best interests will occur. Accordingly, the following is recommended language to be included with any disciplinary listing:

In addition to the above-listed infractions, the Company expressly reserves the right to discipline employees engaged in any other manner of conduct which, in the Company''s opinion, is contrary to the interests of the Company, its employees, or its customers.

Avoid unnecessary "lock-step" disciplinary procedures. Avoid disciplinary procedures that provide mandatory steps or otherwise mandate exact progressive discipline according to a lock-step sequence. Although that type of disciplinary protocol has some benefit in ensuring equality in treatment among employees, more often than not you''ll find yourself in an overly rigid disciplinary context that may not allow for flexibility when conditions may warrant. The following is suggested language to be included with any program that otherwise provides for a lock-step disciplinary protocol:

The Company expressly reserves the right to determine the disciplinary sanction applied in each situation. Although it is the general hope of the Company to engage in progressive discipline, the Company expressly reserves the right to determine the disciplinary sanction on a case-by-case basis, including decisions relating to the termination of employees.

Allow for the consolidation of infractions. Many of you have confronted the problem of an employee who engages in continuous infractions but involving different rules. You may feel limited in your ability to consolidate unrelated infractions. But you have the right to consider infractions collectively in determining disciplinary sanctions. Here''s some language you may use in your disciplinary policies:

The Company reserves the right to consider collectively all infractions by an employee, including attendance, lateness, work rules, and performance-related concerns. Employees may be disciplined when overall considerations of the above criteria collectively indicate a need for disciplinary action.

Develop comprehensive substance and alcohol abuse policies. Ensure that your disciplinary procedures for drug and alcohol abuse are broad enough to encompass possession, use, or being under the influence of the substance on work time or property, including vehicles. Policies should prohibit alcohol or substance abuse off the time clock during the workday (such as break times or mealtimes) as well as immediately before the workday. The policy should clearly reserve your company''s right to inspect all areas of your property and conduct substance abuse testing when warranted in your sole discretion.

Tailor rules to address specific disciplinary issues that your company encounters. Don''t use generic listings of rule infractions without modifying them for your company''s particular experiences and needs. For example, service industries may identify service-related conduct that''s offensive in the workplace. Or professionals such as accounting, medical, or legal firms may emphasize rules that address issues such as patient/client confidentiality and privacy.

When there''s a specific genre of misconduct that your company has repeatedly experienced, such as timecard tampering or reckless driving, it should be identified with particularity in the list of prohibited conduct.

Revise your disciplinary rules to correspond with modern technology. Today''s evolution in technology demands revision of your work rules to correspond to new expectations. For example, employees must be cautioned against introducing external software or transmitting offensive material. Also, the adulteration of computer hardware and software can cause significant economic loss and should be included in the list of disciplinary infractions. An example may read as follows:

No employee is allowed to use the computer or e-mail communication system for the transmission of off-color, pornographic material or other improper material or to receive such material. Employees are prohibited from introducing unauthorized software into the company''s computer system, including the downloading of any material from the Internet.

Prohibit sexual harassment. Any list of disciplinary infractions should include infractions relating to protected-class harassment. Here''s a sample for your policies:

No employee may engage in conduct of a sexual or protected-class nature that is offensive or that is intended to create an offensive workplace. This prohibition includes off-color jokes, comments, slurs, or facial or other gestures that may be offensive to co-workers.

Prohibit dishonesty-related infractions. Take care to prohibit any manner or form of dishonesty, including misrepresentations or theft. A sample provision may read as follows:

Employees are strictly prohibited from engaging in theft or dishonesty of any manner, kind, or degree. This prohibition includes any manner of misrepresentation, including any conduct or statements intended to deceive or mislead the employer, such as misstatements regarding the need for leaves or lateness, the need for sick time, or the reason for productivity deficiencies.

Note that the above language is far more inclusive in identifying prohibited conduct than mere references to dishonesty.

Avoid requiring "cause" for termination. Avoid expressions or policies that suggest you need "cause" or "good cause" to justify a discharge. Sometimes disciplinary provisions will say that employees will "only be terminated for cause." Or other provisions may say that probationary employees can be fired "without cause," inferring that "cause" is necessary after probation. Introducing a "cause" or "good cause" standard erodes your right to engage in a discharge without the employee filing a lawsuit to challenge its legitimacy.

An organized theory of discipline: ''It''s not just a race to produce paper'' Although many personnel professionals appreciate the need to "document," some approach the task without a clear understanding of the defensive objectives for the documentation. Unguided documentation may in fact create evidence adverse to your company''s interest. Accordingly, you should be vigilant in maintaining only those documents that are consistent with your company''s objectives and only in a proper format.

Your system of disciplinary documentation should further two objectives: First, it should define workplace expectations and the fact that they were communicated to your employees. Second, it should give adequate and fair notice to the employees when they have failed to meet expectations. Each element is discussed below.

Step one: "Here''s what we expect." The first step is to clearly preserve the fact that you have stated your expectations for performance or conduct. For example, when an employee''s lateness or absence pattern becomes unacceptable, you should create a record of the fact that he''s been given guidance on your expectations.

Most decisionmakers, such as juries, administrative agencies, and judges, expect "good" employers to clearly articulate performance expectations before taking strong disciplinary action. Accordingly, any disciplinary notice should contain a neutral statement of your company''s expectation, referring to any handbooks or policy statements that may be relevant. Whenever reasonably possible, it''s also advisable to include some explanation of the reason for your expectation.

Sample paragraphs stating expectations for a disciplinary notice follow:

Example one

Dear Employee,

It is the expectation of XYZ Company that all employees report to work by 9:00 sharp. This expectation was set forth in the handbook you received upon employment. It is also necessary in fairness to co-workers and to help in organizing work for the day.

Example two

Dear Employee,

The removal of company property without prior written authorization is strictly prohibited. In this regard, I refer you to Section 5 of the Employee Handbook. Unfortunately, situations can arise in which there is confusion or misunderstanding as to the ownership or status of products that are removed. This confusion can be avoided by adherence to the company''s policy.

With practice, you may find it very easy to follow a similar format for preparing disciplinary notices.

Step two: Give adequate notice of the employee''s failure to meet expectations. The second component of a disciplinary notice is explaining how the employee has violated the expectation. The behavior should be clearly identified with enough particulars for the employee to relate the infraction to the rule. It''s inadequate to merely say that a rule was "violated." On the other extreme, it''s unnecessary to prepare an extended and prolonged explanation of every fact that you know. The following are examples of the degree of particularity usually sufficient to satisfy the general disciplinary notice needs:

Example one

On January 4, January 8, January 15, and January 29, you reported to work after the 9:00 starting time. The frequency with which you have reported after 9:00 is inconsistent with the expectations that we have for reporting.

Example two On February 5, 1997, you were observed removing a wooden skid from the company and placing it in your car at lunchtime. Notwithstanding your statement that the skid was "trash," it was still necessary for you to obtain the necessary paperwork.

In preparing documentation, it''s usually counterproductive and often unnecessary to record every single aspect of the conduct in the notice that''s given to the employee. Generally, it''s a good rule of thumb to look at the disciplinary notice or warning and evaluate it under a very simple test: whether a third party would understand that the employee was clearly warned that the behavior strayed from your expectation. The disciplinary warning shouldn''t be used as an attempt to exhaust all information and knowledge.

Why are documents being generated? Who''s going to read these things anyway? In most cases the incident report or documentation of discipline is prepared in anticipation that a third party will be involved in reviewing your decision. Also, documentation seeks to highlight the seriousness of an infraction in the employee''s mind, although she''s usually well aware of the disciplinary incident.

Disciplinary records often serve as the best defense to an employee''s claim of an unlawful motivation such as discrimination. The records prove that you gave adequate notice of your expectations and memorialized that the employee breached those expectations. A well-reasoned and clear disciplinary notice will maximize your ability to persuade state administrative agencies, judges, or arbitrators about the propriety of your actions.

Another important benefit of good documentation is its impact on attorneys who''re deciding whether to represent an employee in suing your company. To the extent that you appear to have well-reasoned and logical documentation, you become a less vulnerable target for litigation at the decisionmaking stage.

When a disgruntled or discharged employee reports to a law office and relates tales of woe about the unfairness of the workplace, a well-documented history of disciplinary encounters may well dissuade the attorney from accepting the case. Even if a case is initiated, the availability of good disciplinary documentation will tend to devalue the case and possibly lead to a very favorable settlement that wouldn''t be available if there were no records.

Documentation maxims and assumptions Although there are no laws that require the written documentation of each disciplinary decision, there are "unwritten laws" about how a "good employer" operates. To the extent that your company operates within those expectations, you can reap a significant advantage in persuading third parties in the event of a controversy. Here are some of the "unwritten laws" for your company with respect to documentation.

Unwritten assumption #1: "If it''s not written, it never happened." A trustworthy employer would have documented the event. You can anticipate that most juries, judges, and arbitrators expect you to document significant employment events. Your credibility will be seriously questioned if you argue that an event influenced a decision to discipline or fire an employee and the event wasn''t recorded. Some decisionmakers may even conclude that an event didn''t happen if it wasn''t documented. Obviously, that''s the grossest of legal fictions, but it may accurately describe the decisionmaking process for some people.

Similarly, a number of decisionmakers will be predisposed to believe that you had no right to discipline an employee unless he was given a reasonable "chance." To some decisionmakers, that means providing notice "in writing" that his job was imperiled.

Once again, that''s a legal fiction because it''s certainly possible to have warned an employee many times even if none of the warnings were written down. Nevertheless, many decisionmakers will regard the individual as not having been adequately warned unless there''s a written document.

Unwritten assumption #2: "If it was documented, it happened as it''s written." Quite amazingly, your company will sometimes enjoy the benefit of the doubt in a positive direction when an incident has been documented. In other words, many decisionmakers are predisposed to believe that an event happened as written even if oral testimony later contests the validity of the written document.

Some unsophisticated decisionmakers are even predisposed to think that when there''s a conflict between a written document and someone''s oral statements, the written document automatically prevails. Indeed, there''s some slight support for that belief to the extent that the document is a more contemporaneous recording of the event, but it doesn''t necessarily follow that the document''s author is trustworthier than anybody else by the mere fact that the communication is written.

Unwritten assumption #3: "A documenting employer is usually fair." Regardless of the content of the disciplinary notice, many decisionmakers will be persuaded by the mere fact that your company maintains what appears to be organized, fair, and regular recordkeeping. The decisionmaker may assume that if you''re organized and fair in your recordkeeping, you''re also organized and fair in your treatment of employees. In cases in which it''s a close call whether the employer or the employee is a more credible entity, the employer''s apparent well-thought-out methodology may influence the decisionmaker.

Unwritten assumption #4: "There was no discrimination if the procedure seemed reasonable." A final benefit of documentation is the tendency to show proper motivation, especially in the context of discrimination claims. Many discrimination cases are premised on differing subjective perceptions of the workplace and events. If there''s no "smoking-gun" evidence of discriminatory conduct, the case is proven largely by irregularities in the company''s procedures and practices. Certain discrimination agencies will review whether your company appeared to follow a reasoned and fair procedure and, if so, give you the benefit of the doubt that a prohibited motivation wasn''t involved.

Again, that line of reasoning is based on a legal fiction because it''s entirely possible for an organized and methodical employer to engage in prohibited discrimination. Generally, however, decisionmakers subjectively assume that discriminatory motivations are more likely to occur in work settings in which the documentation is poor.

Steven E. Bers is a partner with Whiteford, Taylor & Preston L.L.P.

Copyright 2002 M. Lee Smith Publishers LLC. This article is an excerpt from MARYLAND EMPLOYMENT LAW LETTER. MARYLAND EMPLOYMENT LAW LETTER is not intended to provide legal advice or opinions, but rather to provide information about current developments in Maryland employment law. Questions about individual problems should be addressed to legal counsel.

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