When you discipline or terminate an employee for cause, are you so confident of the correctness of your actions you’d tell disgruntled, parting employees to contact their attorneys? Are you so confident of the actions of all your managers and supervisors who deal with disciplining and firing employees?

One way to gain this level of confidence in your disciplining and firing decisions is to adopt and follow a progressive disciplinary procedure. A typical progressive disciplinary procedure begins with an oral warning, then a written warning, next a suspension without (or with) pay, and finally, termination.

Two things are very important if you have a procedure like this:

  1. Supervisors must be consistent and fair in applying the procedure. Supervisors can’t “play favorites” with some employees, and then be harsh with other employees in similar situations.
  1. Supervisors must document in writing the employee behavior, the employee explanations, and the supervisor statements and decisions, and place this documentation in the employees’ files.

Ensure your disciplinary procedures are used correctly

  • Before a supervisor resorts to the formal disciplinary procedure, have the supervisor meet with the HR director, owner, or top executive. The HR director, owner or top exec takes the side of the employee and asks the supervisor if his or her actions have contributed to the situation. In other words, the supervisor must defend the action he or she is requesting. If action is necessary, the supervisor must couch criticism of the employee in objective language, not subjective opinion.
  • The HR director, owner or top exec reads every disciplinary memo written and put into the employee’s personnel file, looking to make sure the content will have a good chance of standing up in court.
  • The workplace has a dispute resolution procedure in addition to the disciplinary procedure. Let employees know if they feel a supervisor has treated them unfairly or disciplined them unfairly they have someone in management they can go to, to express their concerns.
  • Management conducts independent investigations when necessary. Have a method in place, independent of a supervisor and the person in charge of a dispute resolution meeting, to learn if a supervisor has inappropriately or unfairly disciplined an employee.
  • Train supervisors in how to coach employees in setting work performance goals so employees can expect more than reprimands and discipline. Train supervisors to use reprimands and discipline as a last resort, not as a first response when employees aren’t achieving or when employees screw up. Train supervisors in how to coach employees to overcome their challenges and succeed.
  • Do termination interviews with departing employees, whether they leave in good standing or because of a discharge. The termination interview provides an opportunity to diffuse the anger of discharged employees. Before the meetings or during the meetings fill in termination forms. The form includes a short summary of the employee’s work history and a statement of the reason for the termination or separation of employment.
  • Encourage the employees to sign the form. You can tell departing employees future job references will be limited to the material on this piece of paper. Also assure the employees references will be confined to dates of employment and job titles unless: (1) they sign the termination form, and (2) the prospective employer provides the current employer with the employee’s written authorization to release information on the form.
  • Give departing employees the opportunity to say how they would rewrite the facts listed on the termination form. The employee might say he or she “tried real hard” and “always did real well on the job.” These statements, however true, will not discount the facts which reveal the employee falsified production records or couldn’t meet production goals. This type of conversation encourages the employee to look beyond his or her emotions to the cold, hard facts of the situation.
  • End difficult termination interviews with discharged employees on a positive note. Encourage the employee to begin exploring future career options immediately. Ask him or her, “If you could be anything in the world, what would it be?”

Protect Your At-Will Rights

If you have or adopt a progressive disciplinary procedure, be sure to include a statement like this to protect your employment-at-will rights:

“Nothing in this policy is intended to limit in any way the employer’s right to terminate an employee at any time, with or without cause, and with or without advance notice.”

If you have or adopt a dispute resolution procedure, be sure to include a statement like this, to protect your employment-at-will rights:

“This procedure is a guideline. Implementing this procedure does not in any way prevent, limit or delay the employer’s right to take disciplinary action, including immediate termination, without prior warning or notice to the employee, when the employer believes such action is appropriate.”