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Disciplinary Levels, Subjects, and Prior Notifications

The Golden Rule of Progressive Discipline is simply this: It’s not enough for a company to merely document discipline; managers have to be able to demonstrate their affirmative efforts at rehabilitating their employees. Here’s how it’s done.

To begin our venture into the world of progressive discipline, we’ve got to look at the anatomy of the proposed format. If an infraction of company rules has occurred, performance has fallen below an expected minimum level of output, or the work flow has been impeded as a result of unauthorized absence or tardiness, it may be time to prepare a disciplinary notice. In this chapter, we’ll discuss the first four parts of the write-up template: the heading, disciplinary levels, subject, and prior notifications sections.

The Heading

First, you’ll notice that the customizable narrative (the part that you write) is shown in italics, while the template document (which does not change from sample to sample) is printed in roman. This will make it easier for you to quickly identify which part of the form you need to fill in for each situation.

In addition, note that the date in the heading should be the date on which the document is shared with the employee, rather than the date on which the incident occurred. You will normally refer to the date of the occurrence in the Incident Description portion of the text. (For example, On April 29, 2017, you engaged in inappropriate conduct with a coworker . . .) The active date of the write-up begins the day the employee is made aware of the transgression. Of course, the time of the write-up should coincide with the time of the incident as closely as possible.

Disciplinary Level

A progressive disciplinary system must show itself to be rehabilitative. The system typically moves through a series of one or more notices that an employee’s performance is not meeting standards. So if at any time after a progressive disciplinary intervention, the employee fails to alter behaviors or improve performance, then the next logical step in the process is taken, ultimately resulting in termination for cause.

Each step in the process typically contains some added element to impress upon the employee the growing sense of urgency that the company is attempting to communicate. For example, when an employee fails to render appropriate customer service after having received a verbal warning, then the written warning clearly states that the employee “may have failed to take the previous warning seriously and is consequently receiving this more aggressive form of discipline.” The Consequences section of the written warning will then reflect a more severe penalty should an infraction occur again.

The Verbal Correction (AKA First Written Warning)

The verbal correction is the first step in the formal disciplinary process. In contrast to coaching or counseling sessions, which are informal (and are not documented or placed in the employee’s personnel file¹), the verbal correction must document the nature of the current problem and point to future disciplinary action if improvement doesn’t occur. Consequently, it’s common to end verbal corrections with the caveat phrase “failure to demonstrate immediate and sustained improvement may result in further disciplinary action up to and including dismissal.”

Must every infraction begin with a verbal correction? No. More aggressive disciplinary levels may be appropriate if the employee engages in conduct that in the employer’s opinion is more serious than a verbal correction would indicate. For example, an employee might state to a customer over the phone, “You know, I really don’t care which loan program you go with. Don’t ask me to make that decision for you. Geez!” If this is a first offense, you might not wish to discharge the employee outright; however, you may decide to immediately place the employee on final written notice (even for a first-time offense) that “if you ever again make a derogatory, insulting, or demeaning statement to a customer, you will be immediately discharged.”

Similarly, if an accounts receivable clerk leaves a $10,000 check sitting on his desk for thirty days when turnaround time should be within twenty-four hours, then more severe discipline than a verbal correction would be warranted. The litmus test for determining if a verbal correction or more aggressive disciplinary action would be appropriate is simply this: Follow the verbal written final written paradigm unless starting with the verbal correction would make you, as an employer, appear irresponsible.

You’re obligated to match the discipline to the offense. A slap on the hand isn’t always appropriate when egregious misconduct or serious performance problems occur. That’s why sexual harassment or discrimination findings typically start at the written or final written stage of discipline—even for a first offense.

Note as well that a verbal correction should always be documented. Although “writing down a verbal” may seem contradictory on its face, it is safest to have the employee sign the verbal corrective action notice for two reasons: First, it documents that the employee indeed received the verbal warning, and second, when people sign their names to documents, they tend to take responsibility for the results more readily.

Some labor experts believe that having an employee sign a verbal correction is unnecessary, since it’s only a verbal communication. “If the employee signs it,” they reason, “then you’ve in essence given that employee a first written reprimand rather than a verbal warning.” Logical? Sure, but what’s the harm in trying to increase the individual’s commitment? None. So ask for that extra level of insurance. It never hurts to be overly thorough in these matters.

The Written Warning

The written warning is the second step in the formal discipline process and is obviously more serious than the verbal correction. A written warning serves as formal notice that a serious infraction has occurred or that the directives outlined in a previous verbal correction were breached. Its purpose is to inform the employee that her job may now be in jeopardy. The written warning also aims to gain the worker’s agreement that this will be the last time that a problem should need to be addressed.

A written warning typically affects an employee’s annual performance evaluation as well by preventing the employee from receiving an exceeds expectations score as an overall grade. Verbal corrections, in contrast, typically do not have this level of influence over the annual performance grade. You should share this information with employees who receive verbal corrections because, in dollars-and-cents terms, written warnings may indeed affect their pocketbooks.

Let’s look at an example. An employee receives a verbal correction for three occurrences of unauthorized absence in a rolling calendar year. The verbal clearly states that five incidents will lead to a written warning, six incidents to a final written warning, and seven incidents to a termination. When the employee has a fifth incident, the written warning states:

Because of your clear and concise communication, your instructions and the consequences are undeniable. You will have provided the employee with due process. More importantly, you will have shifted the burden of responsibility for improvement away from your company and to your employee.

Investigatory Leave

Investigatory leave (sometimes referred to as administrative leave) occurs when you suspect a worker of some severe violation or infraction of company rules, but you need to conduct an investigation to confirm your suspicions. Before you interview witnesses or audit company records, you remove the employee from the premises so that an unbiased investigation can occur.

For example, when several female employees make a formal complaint to you that a male supervisor is making lewd comments and sexual innuendos to a point that the workplace feels unfriendly or hostile, you decide to conduct an investigation. You take the female employees’ statements and then meet with the accused male supervisor to gain his version of the events.

Assuming that the two sides do not agree, you then decide to meet with witnesses named by both parties. To conduct these witness interviews most effectively, you may remove the male supervisor from the premises for a few days so that an unbiased investigation can occur. In this case, you find that the witnesses confirm the female employees’ statements, so you then call the male supervisor at home and invite him back to your office to take the appropriate disciplinary action. Let’s assume you choose to place the supervisor on final written warning. You will then check two boxes in this section of the write-up template: (1) investigatory leave and (2) final written warning.

If the witnesses do not bear out the facts as outlined by the female workers, for whatever reason, you would not take any formal action against the supervisor. Therefore, this disciplinary form would not be used, and nothing would be placed into the supervisor’s file. You would pay the supervisor for the two days he spent at home while you conducted your internal investigation, and the matter would be closed.

Final Written Warning

The final written warning is just that—a last-chance agreement between employer and employee regarding sustainable, improved performance or conduct. A breached final written warning normally should result in discharge; otherwise, you sabotage the integrity of your entire discipline system. In addition, at this point, any further infractions will result in the employee’s firing himself via his refusal to reform.

Whereas written warnings provide one more chance should a further infraction occur, final written warnings offer fewer alternatives. As a result, typical language used throughout this book will state: “This is your last chance, and your position is now in immediate jeopardy of being lost. Failure to demonstrate immediate and sustained improvement may result in further disciplinary action, up to and including dismissal.”

Choosing Not to Discharge

There can be an exception to this rule, however. If the employee breaches the terms of a final written warning, but you don’t feel that you’re on solid legal ground to terminate, you may give the employee another chance. This typically occurs when the final incident is not clear and convincing or when the employee has so much tenure with the company that providing him with another chance is reasonable. Let’s briefly look at an illustration.

In our previous example about the supervisor who is accused of making sexual innuendos and creating a hostile work environment, suppose that you found that certain witnesses agreed with the supervisor that no harassment occurred. Indeed, some of these witnesses attest that the female employees not only engaged in but also initiated sexually oriented jokes and comments.

If the supervisor has already received a written warning for violating your company’s sexual harassment policy, could you opt to terminate him based on this investigation? Probably not, since the conflicting and contradictory testimony from those witnesses muddies the waters. Without a clean final incident, it might be difficult to justify termination.

Still, the supervisor shouldn’t have engaged in or allowed such discussions in the workplace, so discipline is certainly appropriate. Therefore, you might opt to state the following in the new disciplinary notice to the supervisor:

In taking this action against the supervisor, you would neither violate the terms and conditions of the final warning nor set a dangerous precedent. You would, instead, fit the discipline to the offense, protect the employees who made the original complaint, and accord the supervisor due process. You would also avoid a wrongful discharge claim stemming from controversial witness statements—just the type of confusion and inconsistency that plaintiffs’ attorneys love. It would also be appropriate in this case to discipline the female employees for engaging in or instigating inappropriate conversations.

Last-Step Options

Next, a note on semantics in this book: A final written warning is a last-step option. Different companies use different last-step options, and which one they use depends on their culture, history, and philosophy of discipline. Following are the five most common forms of last-step options, along with my recommendations concerning their use:

1. Final Written Warning

Recommended. The benefit of using this term is that it’s very clear and logically follows the verbal and written disciplinary actions that precede it.

2. Probation

Acceptable. Some companies prefer not to use the term final written warning and instead imply it by stating: “If you fail to follow established departmental policies and procedures at any time in the next ninety days, you will be placed on a formal ninety-day probation. If you fail to follow procedures or meet minimum performance standards in that probationary period, you will be dismissed.” That formal ninety-day probation is actually equivalent to the final written warning.

3. Last-Chance Agreement

Recommended. However, some companies use last-chance agreements as separate, freestanding documents. I recommend including last-chance agreement language in the disciplinary document itself. Therefore, we won’t use last-chance agreements as the final step of discipline but in the final steps of discipline.

4. Unpaid Suspension

Suspensions without pay are recommended only in cases involving willful misconduct or actions with malicious intent. In practice, disciplinary suspension is usually used to punish the employee for seriously unacceptable behavior. By “hitting him in the pocketbook,” so to speak, the message is more pointedly brought home that the employee has committed a serious violation that, because of mitigating circumstances, is not currently leading to immediate discharge.

Disadvantages of suspension without pay: This punitive measure has a number of serious disadvantages. First, by its nature, this action is negative, not affirmative. Therefore, it will fly in the face of your company’s mission statement or belief about treating employees with dignity and respect. Second, unpaid suspension places an economic burden on the employee’s family. In a sense, the family pays for the worker’s performance and/or conduct problems, since pay is withheld. And third, placing an employee on unpaid suspension tends to create a martyr syndrome when employees share their woes with one another. The “bad” company takes advantage of the “helpless” employee by humiliating him in front of his family and causing him to lose face. Therefore, I recommend that you typically avoid traditional unpaid disciplinary suspensions whenever possible.

Appropriate use of suspension without pay: On the other hand, if an employee engages in willful misconduct or egregious behavior that smacks of retaliation or harassment, then a traditional unpaid suspension may be appropriate. In such cases, the malicious intent of the employee’s actions may dictate that you take a harsh disciplinary posture.

For example, when a disgruntled dishwasher unloads a stack of new dishes from the box, holds them out in front of his chest, drops them, and then says, “Oops, I guess that was an accident,” you might not want to impose a summary discharge because of mitigating circumstances (e.g., this may be the first and only display of improper conduct in his twenty years of employment). However, you could very well place him on an unpaid three-day suspension (assuming your policy and past practices allow for that) so that the disciplinary measure fits the infraction.

As another example, suppose a telephone company installer crashed a brand new $40,000 vehicle on Monday but failed to inform his supervisor until Friday. Company policy clearly states that any accidents must be reported immediately to supervisors. The employee’s willful breach of this clearly established policy allows the supervisor to impose on the twenty-year employee the strictest discipline allowed by the company: a thirty-day unpaid suspension.

Similarly, suppose a warehouse manager asked his boss for three vacation days, Thursday, Friday, and Monday, and his director informed him in advance that Thursday and Friday were okay to take off, but the following Monday was not. The manager promptly told his secretary to mark him down for Thursday and Friday as vacation days and Monday as a sick day. This employee willfully violated his director’s immediate instructions (i.e., not to take Monday off) and the company’s sick leave policy (i.e., that sick time can be used only for the employee’s or family member’s actual illness). Again, if this was a first-time offense for a ten-year employee, termination might not be appropriate in the company’s eyes. A five-day suspension without pay,² however, may be appropriate because of the worker’s flagrant disregard of his supervisor’s directive and the intentional abuse of company policy.

5. Decision-Making Leave

Decision-making leave is the fifth kind of last-step option and is highly recommended. Organizations that want to achieve best practices in their employee relations activities place employees on one-day paid disciplinary leaves, also known as decision-making leaves or days of contemplation.

In stark contrast to the historical and punitive suspension without pay, the decision-making leave removes the “defacing” mechanism from the discipline process and helps employees focus on their behaviors rather than on yours. (Guilt is always a more effective motivator than anger.) It is most often used when willful misconduct and malice do not come into play; instead, there is either (a) a performance or conduct problem that has recurred and that simply must stop or (b) a demonstrated serious lack of judgment.

For example, an electrician left work promptly at his clock-out time despite the fact that the hospital where he worked was experiencing a brownout. Going home when emergency conditions dictated that he should have remained at the work site in order to repair broken generators jeopardized patient safety. His supervisor immediately placed him on a final written warning and one-day paid suspension so that he could rethink his role as an electrician and as a valuable asset to the hospital. The employee returned two days later with a written commitment letter confirming his role in emergencies and his responsibility to the institution.

In another example, a secretary who was known for “stirring the pot” and feeding the corporate grapevine was found to have begun a false rumor about a coworker in her department. She stated to others that she was aware that a male employee in her department was gay. Another worker in the unit believed this and brought news of the employee’s homosexuality to the employee’s mother—a long-time family friend. When it was found that the original rumor, although untrue, had been started by the secretary, it was too late for the damage to be undone—confusion, hurt feelings, and unnecessary drama resulted.

Management placed the secretary on a final written warning plus a one-day paid suspension to rethink her commitment to the institution and the unforeseen damage that false rumors could cause. The secretary, in turn, returned two days later with a written statement confirming her intention never again to engage in rumor mongering. Letters of apology were also composed and delivered in person to her colleague.

You should consider paid decision-making leaves a cheap insurance contract. By sending someone home for one day with pay to impress upon him the seriousness of the problem, you’ll pass one of the EEOC’s due process tests with flying colors. The Equal Employment Opportunity Commission (EEOC) is the federal government body that investigates and prosecutes claims of discrimination, harassment, and wrongful discharge. The EEOC tends to look favorably on an employer’s willingness to pay for an employee’s “time out” period.

Besides, by paying for the time off, you retain your right to give your worker a mandatory written homework assignment detailing how he will improve his behavior. You’ll consequently get a concrete work product that documents, in the employee’s own handwriting, how he will recommit himself to following workplace rules. Here’s how you would present the situation to the worker:

That signed commitment letter in the employee’s personnel file should go a long way toward getting the employee to buy into his own improvement. More importantly, it provides you with a powerful piece of ammunition should you later terminate the employee for cause and face an arbitrator’s challenge. Figure 2–1 provides a sample decision-making leave handout that you can give the employee as he walks out of your office and heads home to ruminate about his future with your company.

Make it clear to the employee during your conversation that this is a once-in-a-career benefit. If you raise the bar in terms of individual responsibility, you’ll soon find that people either politely bow out of your firm or recommit, reinvent their jobs, and lose that sense of entitlement that unfortunately plagues so many workers.

The choice of including decision-making leaves in tandem with final written corrections is ultimately yours. These leaves work best with long-term employees, who, because of their tenure, deserve more of a chance to correct performance problems. They can be used with all employees, though, since wrongful discharge claims are not limited to long-term workers. Bear in mind, however, that investing one day’s pay can shield your institution from liability while improving morale and having a positive effect on the corporate culture

Figure 2–1. Decision-making leave.

Caution Regarding Decision-Making Leaves and Unpaid Suspensions

The decision-making leave and suspension without pay should be used not in place of, but as a part of, the final warning. That’s why we’ve placed both under “Final Written Warning” in the disciplinary template. If you don’t attach these leaves to the final written warning notice, then employees may assume that they have a right to a suspension or decision-making leave before they can be discharged. In practice, you could end up changing your disciplinary paradigm to look like this:

Adding that suspension or decision-making leave could change the traditional three-tier system to a four-tier system if you administer these types of disciplinary actions on their own. That would certainly weaken your ability to discharge employees for cause because you will have inadvertently created a new hoop to jump through.

The purpose of these leaves, however, is not to burden you with even greater due process requirements. Instead, it is to prove your good-faith efforts to bring to employees’ attention the seriousness of their offenses. By linking these actions to the final written warning, therefore, you’ll retain more flexibility in determining the format of the last-step option without burdening your progressive discipline system.

Classifying the Infraction

Classifying violations is critical lest you end up with a third verbal warning rather than with a progression of disciplinary actions for three related incidents. Even if three errors were committed, if the infractions are not linked somehow, you’re still at the first stage of discipline. You’ve simply doled out separate verbal warnings three times. On the other hand, when you can link the incidents, you can progress from a verbal to a written to a final written correction—obviously a much more aggressive and serious approach to repeated violations of company rules or subpar performance.

Many managers mistakenly document isolated events without tying them to a broader theme. The line to the right of the word Subject allows you to specifically document the particular problem at hand. For example, you might write something specific like:

However, you then need to tie these individual transgressions to a broader theme of workplace transgressions in order to create an interrelationship among events.

There are four broad categories of performance issues: policy violations, performance transgressions, conduct infractions, and absenteeism and tardiness. You can use these categories to link seemingly unrelated events. You will then be able to successfully progress through the disciplinary system even when transgressions aren’t identical. It is also possible for an act to fall into more than one category.

Policy/Procedure Violations

Policy or procedure violations occur when a written company standard or understood rule is broken. For example, a worker who violates a safety policy may be subject to discipline. Likewise, two coworkers engaging in horseplay who end up damaging company equipment should be disciplined even if there is no company rule specifically addressing horseplay in the workplace. In that case, a certain level of common sense regarding workplace behavior can be imputed to the employee.

Some critical issues when applying rules, regulations, policies, and procedures to employee conduct are:

You will be required to abide by them consistently.

They must be reasonably related to achieving a legitimate business purpose.

They must be nondiscriminatory in purpose and application.

They must not be designed or applied to harass or punish employees.

They must not infringe upon any of your employees’ rights.

Remember that you have the right to set the rules of the game in your company. Legal challenges will occur, however, when you deviate from your own rules, and plaintiffs will win lawsuits if your inconsistency can be proved. Proper documentation is your only defense!

Performance Transgressions

Performance transgressions occur when employees fail to meet established production or output guidelines. Underperforming salespeople, analysts with high error ratios in their calculations, and construction workers who are negligent with their materials and cause unnecessary property damage would be disciplined for unacceptable performance.

Behavior and Conduct Infractions

Behavior and conduct infractions come about when an individual’s personal actions violate accepted corporate rules and norms. An employee, for example, who refuses to follow a supervisor’s reasonable directive or who attempts to undermine the supervisor’s authority by openly challenging her in front of others commits insubordination. Similarly, alcohol-related conduct, profane language, and retaliation all violate behavioral standards.

Absenteeism and Tardiness

The individual’s failure to adhere to attendance or timeliness guidelines causes unplanned overtime and work flow redistribution, as others must cover for the absent worker. As a result, the work flow is negatively affected.

Bundling Unrelated Items

What do you do with an employee with violations in separate classifications? In other words, if she receives a verbal warning for a policy infraction one week, a verbal for a performance transgression the next, a verbal for a conduct infraction a week later, and then has a series of unauthorized absences, what can you do to drive home the message that her job is in jeopardy?

Bundling allows violations that are fundamentally unrelated to be lumped together for purposes of documenting poor performance. This accumulation factor often plays an important role in justifying terminations because it documents that workers are not rehabilitating themselves or taking prior warnings seriously. You may consequently advance to a higher disciplinary level by stating:

Arbitrators will generally uphold more aggressive disciplinary measures when numerous performance problems—even if unrelated—have accumulated over short time periods.

Prior Notifications

This section of the write-up is a fail-safe measure to ensure that you, as a manager, have properly notified the employee of past performance issues. Bear in mind that, if your action is challenged, the completeness and thoroughness of your documentation will be taken into consideration. Over time, consistently well-documented interventions will provide your company with clear and logical progressive attempts to rehabilitate your staff members. Simply put, you’ll sleep better at night knowing that all the managers in your company are following the same guidelines.

All prior discipline should be noted here, not just discipline related to the current transgression. In other words, although you may be disciplining the employee right now for a breach related to unscheduled absence, last month’s disciplinary warning regarding substandard sales production should be captured here as well. In essence, you want to impress upon the employee the totality of events that prove substandard performance.

How far back you go in listing prior disciplinary notifications is up to you. It’s most practical to go back one year. A three-year-old problem regarding insubordination won’t necessarily add any merit to your current argument that the individual’s unscheduled absence is having a negative effect on everyone in the department. However, if you’re currently writing up the employee for insubordination, then mentioning that three-year-old transgression might make sense.

It’s important to remember to review the worker’s personnel file before administering discipline. Discipline can’t be administered in a vacuum: It must logically be tied to the employee’s prior warnings and performance evaluations. Therefore, you’re better off documenting any prior disciplinary actions that, in the fairly recent past, have caused you to avert your efforts away from the workplace in order to address the employee’s individual needs.

1 Any notes you generate during a coaching or counseling session may be placed in your critical incidents diary in your office, but not in the employee’s personnel file.

2 A special note about docking pay for exempt workers (like managers) for disciplinary reasons: Unpaid disciplinary suspensions of one or more full days may be imposed in good faith for infractions of workplace conduct rules. Such suspensions must be imposed pursuant to a written policy applicable to all employees.

In contrast, if you were to deduct a partial day’s pay for a disciplinary suspension, that could result in the manager’s exempt status being negated, and you could be left vulnerable to overtime charges for an FLSA (Fair Labor Standards Act) violation. In other words, the exempt manager could be considered a nonexempt employee who is entitled to overtime pay. The Department of Labor’s Wage and Hour Division could end up sticking you with a massive “back wages” assessment in that case for overtime due to your manager!