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Paul Zimmerman
pzimmerman@mrllp.com
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How do I discipline thee? Let me count the ways … The Pros and Cons of Progressive Discipline Policies

Employee discipline is a nettlesome issue. Employers should strive to be fair and consistent in all disciplinary matters, but as they say, the devil is in the details. Circumstances, the people involved, the environment, and how certain conduct impacts a company will always vary from one situation to the next, making it a tall order to mete out “punishment” in a fair and consistent manner without fail, each and every time.

One solution employers have used is a “Progressive Discipline” Policy (“PDP”). Typically, a PDP identifies a set group or category of infractions (ranging from attendance issues to theft), along with disciplinary actions which progress from least severe to most severe. Disciplinary action usually starts at the pre-discipline stage, with counseling, and then progresses to a:

    • Verbal Warning
    • Written Warning
    • Suspension
    • Termination

 

Advantages of a PDP

What are the advantages of a PDP? One advantage is clarity in setting expectations.  Employees cannot argue that they “did not know” of a rule or the consequences if it is clearly set forth.

A second advantage is that a PDP gives an employee fair warning about their conduct and its consequences, providing the employee with an opportunity to change behavior or conduct.

A third advantage is that a PDP tends to promote fairness and consistency.  If the employer is viewed as fair and consistent, morale will be higher. Perhaps more importantly, a fair and consistently applied PDP can and should help ward off claims of discrimination and harassment, building a strong foundation of corrective action that will help defeat such claims.

One more advantage involves the threat of unionization. Union organizers search for company vulnerabilities, and the absence of a PDP is an issue they usually hone in on. The existence of a PDP generally helps defeat or discourage a unionization effort.

Disadvantages of a PDP

PDP’s also have disadvantages.  One is the perception that a PDP is inflexible, that despite the severity of the offense, the employee will only receive the first level of discipline.  This disadvantage can and should be addressed in writing in the policy itself.  Even when that is the case, employees often labor under the mistaken notion that they will not be fired for a “first offense.”  A PDP should make it clear, in writing, that discipline will be determined based on the circumstances and severity of each incident.

Another disadvantage involves a presumption by employees that each category of offense is separate and distinct, and the progressive discipline starts anew for each different category.  For example, an employee who is at the written warning stage for one infraction (safety) might expect a verbal warning if the next infraction is of a different class (insubordination).  Again, this issue can and should be addressed in drafting the policy.

A third disadvantage applies to companies in states where Employee Handbooks and Policy Manuals can create binding agreements.  In those states, the PDP may create a binding contract, making it even more imperative to draft the policy carefully.

In addition to drafting the policy carefully, employers implementing a PDP should take the time to roll it out properly, training employees as to the meaning of the PDP, and managers and supervisors regarding enforcement and execution.  Managers should understand they have some flexibility in executing a PDP, and how to create effective and defensible documentation of employee misconduct.

This blog post is not offered as, and should not be relied on as, legal advice. You should consult an attorney for advice in specific situations.