HR Matters
E-Tips
This Week's Tip: Employee Discipline (Part 1 of 2)
November 4, 2003, Volume 5, No. 44
Published by Personnel Policy Service, Inc.
"Your Policy and Compliance Experts Since 1972"
To unsubscribe - see bottom of page
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
This Week's Tip: Employee Discipline (Part 1 of 2)
Haphazard discipline can lead to lower productivity, poor morale, and the
potential for lawsuits. In the next two E-Tips, you'll find out what types
of
claims employees file for improper discipline and the steps you can take
to help prevent them.
| ****************************** SPECIAL TRAINING OFFER *********************************** | ||||
| Ten Danger Zones for
SUPERVISORS Published by M. Lee Smith Publishers LLC Recommended by Personnel Policy Service http://www.ppspublishers.com/dzabout1.htm Avoid employment lawsuits with an award-winning video training program that includes everything you need to conduct fast-paced, energized, and effective employment law training for your supervisors. Examine Ten Danger Zones for 21 days with no obligation and no prepayment. Special savings offer for HR Matters E-Tips subscribers. For information and to order, go to: http://www.ppspublishers.com/dzabout2.htm |
|
|||
| ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ | ||||
| This Week's Tip: Employee
Discipline (Part 1 of 2) Let's face it – most of us don't like to deal with discipline problems. All too often, supervisors fail to respond to unacceptable employee behavior, hoping that it is just a one-time incident. Alternatively, a few may be so focused on punishing employees that they lose sight of whether the discipline will correct the situation or actually lead to other problems. Both the "head in the sand" and the "crime and punishment" approach to employee behavior leave much to be desired and may even result in litigation. So, what is the best way to deal with problem employees? You should address their substandard performance or misconduct promptly and effectively by focusing on correcting the underlying problems. In this week's E-Tips, you'll find out what legal claims can result from inconsistent or improper disciplinary action. Next week, you'll learn steps to take to handle employee problems and to support your disciplinary policies. Discipline Can Provoke Legal Claims Many managers put off or avoid dealing with problem employees because of fears that disciplinary action could spark a legal claim against the employer. These concerns arise mainly from publicity surrounding bungled disciplinary actions. Increasingly, employees who feel they have been disciplined unfairly or inconsistently resort to lawsuits claiming discrimination, retaliation, contract protection, and improper pay docking. Each is discussed below. 1. Discrimination. Inconsistent discipline can lead to charges of discrimination, particularly when members of protected classes are disciplined more severely than other employees in comparable circumstances. For example, in Graham v. Long Island R.R., 230 F.3d 34 (2d Cir. 2000), the Second Circuit allowed a black employee to pursue his claim that the employer's disciplinary action against him was a pretext for race discrimination. The employee showed that similarly situated white employees received multiple "last chance" agreements before termination, but that he was terminated after only one. Variations in discipline for the same offense are legally justifiable, however, if there are valid nondiscriminatory reasons. Acceptable variations can be based on factors such as the employee's past performance, number of previous infractions, length of employment, and position in the organization. Thus, in Gilmore v. AT&T, 319 F.3d 1042 (8th Cir. 2003), the Eighth Circuit determined that a black customer service representative did not show that her termination was racially motivated. The employer had a legitimate nondiscriminatory reason for her termination, and the infractions committed by the employees she compared herself to were not similar in severity or frequency. 2. Retaliation. Most federal and state employment laws prohibit employers from retaliating against employees who exercise their legal rights (such as complaining about discrimination to the Equal Employment Opportunity Commission) or who fulfill their legal obligations (such as serving on a jury). If you discipline an employee who has exercised a legal right, you then run the risk of appearing to retaliate, regardless of the underlying facts. For example, in Evans v. City of Houston, 246 F.3d 344 (5th Cir. 2001) the Fifth Circuit allowed a nurse to pursue her claim of retaliation when her promotion was revoked five days after she testified at a coworker's discrimination hearing. Her employer had no documentation of misconduct leading up to the disciplinary demotion and had praised her abilities in a commendation letter sent just before her promotion. |
||||
| ***************************** SPECIAL TRAINING OFFER *********************************** | ||||
|
Avoid Employment Law Disasters Ten Danger Zones for Supervisors Published by M. Lee Smith Publishers LLC Recommended by Personnel Policy Service Examine video training series for 21 days with no obligation and no prepayment. For more information and special savings offer, go to: http://www.ppspublishers.com/dzabout3.htm Or call 1-800-274-6774. (Mention code "H417" to get your discount.) |
|
|||
| ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ | ||||
|
3. Disciplinary policies as contracts. Employers that do not
follow their disciplinary policies, and related procedures, may get sued for breach of contract or wrongful discharge. Courts have ruled that disciplinary policies can be contracts, even when employers include at- will statements in them, if the policies contain provisions promising that the employer will follow specific disciplinary procedures. So, in Dillon v. Champion Jogbra, Inc., 819 A.2d 703 (Vt. 2002), the Vermont Supreme Court found the disclaimer printed in an employee manual was in conflict with the employer's elaborate discipline and discharge system, which the employer said would be carried out in a fair and consistent manner. The Court ruled that the employer was sending mixed messages to employees about their status. Accordingly, it allowed a terminated employee to pursue her breach of implied contract claim since the employer had apparently adhered to these procedures in almost all other cases. Thus, your disciplinary policy should include "at-will" language stating that the policy is only a guideline, that management reserves the right to exercise its discretion in implementing it, and that you retain the right to discharge employees immediately. 4. Improper partial week pay "docking" for discipline of exempt employees. Even pay issues related to disciplinary action can get you into trouble. If you use unpaid suspensions to discipline employees who are "exempt" from the minimum wage and overtime requirements of the Fair Labor Standards Act (FLSA), you may jeopardize their exempt status. Except in cases of serious safety infractions, the FLSA regulations require you to pay a suspended exempt employee for the full workweek if the employee works at least part of the week. However, you do not have to pay a suspended exempt employee if the suspension is for a full workweek. So, in Block v. City of L.A., 253 F.3d 410 (9th Cir. 2001), the Ninth Circuit determined that employees classified as exempt, but who were subject to partial week suspensions for violation of rules unrelated to safety, were in fact being treated as nonexempt and were thus entitled to overtime pay. Next week: Informal counseling, progressive discipline, and four tips for implementing your disciplinary system. Subscribers to the Personnel Policy Manual and HR Policy Answers on CD can find more information on discipline in Disciplinary Procedure, Chapter 808, and Behavior of Employees, Chapter 801. If you don't have the manual, but would like to order a trial review, go to: http://www.ppspublishers.com/service2.htm Or just give us a call toll-free at 1-800-437-3735. |
||||
| ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ | ||||
F-r-e-e HR Policy Download Center Resource Center offers f-r-e-e downloads to help you save time. http://www.ppspublishers.com/ez/resources/ Your Editors at HR Matters E-Tips have set up a special resource center where you can download HR policies and other helpful materials on such topics as: - Behavior of Employees - Family and Medical Leave of Absence - Employee Classifications - Sexual/Workplace Harassment Policy - COBRA Quick Guide - E-mail and Internet Use - Minimum Wage and Overtime Check for these and other tools to help in your job. To download one or more of the above, go to: http://www.ppspublishers.com/ezdownload.htm |
Free HR Policies and more.. |
|||
| ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ | ||||
YOU CAN TRUST PPS
Information provided in HR Matters E-Tips is researched and reviewed
by the HR experts at Personnel Policy Service as well as employment
law attorneys. However, it is not intended as legal advice. Readers are
encouraged to seek appropriate legal or other professional advice.
Interested in using an article from HR Matters E-Tips on your Web site or
in a newsletter?
Please contact Robin Thomas, Managing Editor of Personnel Policy
Service, Inc., to request permission. You can contact her by email at
editor@ppspublishers.com or by
telephone at 1-800-437-3735.
Please note that the information in every issue of HR Matters E-Tips is
the original, copyrighted work of Personnel Policy Service, Inc., and is
protected under U.S. copyright laws. As such, you may not reprint or
publish in any format any article or portion of article from HR Matters E-
Tips without the express permission of Personnel Policy Service, Inc.
Remember, too, we encourage you to pass along any issue of the E-Tips
by forwarding it to friends and colleagues.
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
HR Matters E-Tips is a f-r-e-e service of Personnel Policy Service, Inc.
To subscribe, go to:
http://www.ppspublishers.com/ezsignup.htm
© 2003 Personnel Policy Service, Inc. All Rights Reserved.
HR Matters is a registered trademark of:
Personnel Policy Service, Inc.
159 St. Matthews Ave., Suite 5, Louisville, KY 40207
Tel: 1-800-437-3735 - Fax: 1-800-755-7011
CONTACT US: ezine@ppspublishers.com
FORWARD THIS ISSUE: We invite you to forward HR Matters E-Tips to
a colleague or friend.
{{ openrate() }}
To unsubscribe/change profile: click here
To subscribe: click here