How to Discipline Your Employees Without Getting Sued

Dealing with staff that does not perform up to standards or expectations can be difficult. It is especially hard when the employee is insubordinate or does not seem to care about the work they do. It can be tempting to simply fire an employee immediately when their job performance is not up to par, but, from a legal standpoint, doing that may not be a good idea.

As a general rule, most employee relationships are “at will.” That means that, as an employer, you can terminate an employee for any reason that is not illegal. However, when you terminate an employee, it can be construed as illegal (such as discrimination or harassment) if you do not have a disciplinary program in place.

Importance of Progressive Discipline

To avoid an employment-related lawsuit, it is a good idea to explain to the employee when there are problems with performance or other related issues. Sitting the employee down to talk to him or her about the problem and how they can improve is not only good for business, it is also a good idea for legal purposes. Progressive discipline programs show that the employee was aware of the problem and he or she did not improve or had other additional issues.

Many companies use a system that involves the following steps:

  1. Verbal warning
  2. Written warning
  3. Probation
  4. Unpaid leave
  5. Termination

You certainly do not have to use all of these steps, and you can alter them to fit your needs. Perhaps you want to allow two verbal warnings over six months before a written warning is issued, for example. Regardless of what you decide, be sure to write down the policy and use it consistently with every employee. Every employee should also receive a copy of the plan that you use and be notified of any changes.

Paper the Personnel File

It is extremely important to keep records of every disciplinary action you take—even verbal warnings. These records will help you deal with any potential legal claim that may arise.

Consider this example. Imagine that an employee that you just terminated sues you for discrimination because he thinks he was fired because of his hearing problem. If you can show the court or administrative agency that the employee was repeatedly warned about being late or not showing up for work, then you can state with confidence that the employee’s attendance was the real cause of the termination, not his hearing. If, on the other hand, you cannot prove that you ever talked to the employee about performance issues, the discrimination claim may be more of an open question.

Developing a disciplinary plan can be difficult, but it is necessary. Whether you need help creating a plan or addressing a legal claim, the team at Integrated Legal Counsel can help. Call today to set up an appointment.

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Written by Integrated General Counsel

Our focus includes handling a variety of corporate matters and also includes litigation in state and federal courts. Our current practice includes providing transactional services and representing a variety of small and medium-sized companies as their outsourced general counsel.