Nearly every employer faces the need to discipline or discharge an employee.

Often the facts and circumstances are not so clear and simple, and questions arise as to whether the employer is following correct procedures to avoid getting into legal trouble.

It may be impossible to call an employment attorney in every situation, but if one could, here are some questions the lawyer would likely ask:

1. Is there a collective bargaining agreement?  Most union-negotiated agreements feature specific discipline and discharge standards and procedures.  Employers need to know and follow them.
2. Is there an individual employment agreement?  Agreements can be written, verbal, and even sometimes implied. Consider what your employee reasonably believes to be procedurally required under any such agreement.
3. Is the discipline consistent with personnel policies and rules?  Do you have personnel policies?  Do your anticipated actions follow your own policies?  If your policy requires progressive discipline, you need to follow those steps.
4. Is there an exception to “employment at will?”  There are statutory and court-made laws that limit employer discretion to deal with employees.
5. Might discipline constitute illegal discrimination?  Is the employee a member of a protected class based upon age, race, color, gender, creed, marital status, national origin, disability, or sexual orientation?
6. Might discipline constitute illegal retaliation?  Is there a pending Workers Compensation, OSHA, Wage & Hour, union organization, or other regulatory matter?
7. Is the discipline consistent with past practice and precedent?  Employers are expected to apply rules and standards the same way from one employee to another.
8. Has the objectionable conduct been documented?  Careful, thorough, uniformly recorded documentation of the grounds for discipline is vital.
9. How will you tell the employee?  Often an employer gets into trouble because of how an employee is disciplined, rather than why.  Unnecessary confrontation, intimidation, spectacle, and embarrassment must be avoided.
10. Has the employee been given due process?  Has the employee been given opportunity to be heard and to try to explain?  The employee may be entitled to have a representative with him/her at any meeting regarding discipline.

Sometimes venturing into employee discipline seems like walking into a minefield.

Employers must be careful, and keep up with the constantly changing standards, requirements and expectations in order to avoid unnecessary liability.

 

Wenger is a business attorney in Youngstown, Ohio, and can be reached at awenger@hhmlaw.com or at (330) 744-1111