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Disciplining employees in the workplace is tricky. How does an employer ensure that its policies and procedures are being complied with while also continuing to motivate and inspire its employees? More importantly, how can employers discipline their employees without getting into trouble themselves? Here are seven things that employers should avoid when disciplining an employee.
1. Discrimination
The first and most important rule is to never discriminate against an employee based on their protected class, which means age, race, sex (including sexual orientation and gender identity), national origin, religion, disability, veteran status, genetic information, and any other protected category under federal, state, or local law. Implicit and unconscious biases can often lead to disparate treatment of different employees even when there is no intentional discrimination.
Also, be mindful of whether your adverse employment actions are creating a pattern of disparate treatment of a particular protected class. A good idea is to have a centralized system for tracking discipline issued to employees so you can easily research how similar conduct was treated in the past. Treating people differently for the same offense is the easiest way to face a claim of discrimination.
2. Unclear Policies, Or Not Following Them
Disciplining employees without clearly written policies is not only bad for morale, but can lead to inconsistency and confusion among employees. Policies should spell out the expectations for employee behavior as well as the consequences for violating those expectations. Also - make sure to follow your policies. If a policy calls for progressive discipline, failing to follow the steps needed can lead to a claim of - you guessed it - discrimination. And if you are in a unionized workplace the collective bargaining agreement will govern the discipline process.
3. Lack of Documentation.
What do your HR folks always say? Document, Document, Document, right? There's a reason for this. Not only does a lack of documentation make it harder to defend against a claim of discrimination, it suggests an ulterior motive that is simply not fair to the employee. Good documentation is the key to protecting a company against claims of discrimination.
4. Retaliation
Retaliation can take many forms, such as firing, demoting, harassing, or otherwise discriminating against an employee. If an employee has complained about discrimination or harassment in the workplace, filed a workers’ compensation or EEOC claim, or participated in an investigation by the Department of Labor, there's a high likelihood that they may have a colorable retaliation claim if subject to an adverse action. In such a situation employers should make sure that the discipline issued is warranted and properly documented.
5. Inconsistency In Discipline
Managers and supervisors must apply disciplinary measures consistently across all levels of their organization – even if it means disciplining a higher-level employee for behavior that might otherwise be tolerated among lower-ranking employees (e.g., calling out sick). It’s unfair to expect junior staff members not call out sick while allowing senior executives to do so regularly without penalty; this sends mixed messages about what behavior is acceptable within an organization. Not to mention that inconsistent discipline will likely make employees wonder why they were singled out.
6. Having Poorly Trained Managers
Employers should make sure they properly train their supervisors on how to handle disciplinary situations, as well as about implicit and unconscious biases. Managers should know both the laws and the company's policies very well. This will go a long way towards avoiding situations that could lead to lawsuits and claims. This goes for everyone from first-time managers to seasoned employees; a refresher never hurt anyone!
7. Not Asking For Help
There are times when a company would be well served to consult with an employment attorney to review the situation and help craft a path forward. If you're in a situation where you're unsure of potential liability, it's best to take the extra time to have someone a step removed from the situation help out.
Discipline is an important part of any workplace, but it’s also crucial to do it the right way. By following these simple tips, employers can avoid costly legal disputes with their employees.
