We’ve talked before about employee suspensions: how to handle themand what happens during a suspension. But today’s reader note goes into an area that we haven’t spent much time talking about – progressive discipline.
I received a suspension for ripping company policy papers in half in front of my supervisor.
A couple of days ago, I received a written warning for wearing my uniform home. During the conversation, I asked my supervisor for a copy of the company policy on uniforms. He didn’t give it to me, but instead read me the policy. Later, he gave me a copy of the policy, but since he had already read the policy to me…I didn’t need it anymore so tore it up.
My supervisor got severely agitated because I tore the policy in half in front of him. My next shift, I got called into his office and was a 1-day suspension due to “disrespectful behavior”. Do I have an argument here?
Of course, we don’t have the supervisor’s side of the story, and I’m sure the company has their perspective. So even though we might not be able to address some specifics, I think this scenario raises some great questions about codes of conduct and progressive discipline.
To help us understand this matter, I asked our friend Kate Bischoff to share her knowledge. Kate is an employment attorney and HR consultant at tHRive Law & Consulting LLC. She’s shared her experience with us before – one of my favorite articles is this one about “HR Failed to Investigate an Incident”.
I know you realize this, but please remember that Kate’s comments should not be construed as legal advice or pertaining to any specific factual situations. If you have specific detailed questions, they should be addressed directly with your friendly neighborhood labor attorney.
Kate, thanks for helping us with this reader note. Because all employees come from different backgrounds, and have different experiences, etc., is it true to say that most organizations have some sort of code of conduct? You know, a set of rules that we all need to abide by? And if so, what types of behaviors are usually included in a code of conduct?
[Bischoff] YES! Employers need a code of conduct. It doesn’t even need to be called a code of conduct. That said, employers need to set expectations by outlining their standards of respect, attendance, and dress code as well as prohibitions against harassment and discrimination. Some employers may have additional policies or language for their industry or business.
Also, do not have a list of all the things employees could do to get in trouble. Employees are a creative lot. They will find umpteen ways to get in trouble. Instead, employers should include language like “We expect employees use good judgment in all situations.” While this is a wholehearted steal from Nordstrom’s, it is not wrong. If an employer says that it expects good judgment and an employee does something stupid, you should discipline even though the stupid wasn’t in your handbook. A policy prohibiting stupid isn’t a prerequisite to discipline.
In this case, we don’t know what the company’s policies and procedures are…but let’s say that the company has a uniform policy and the employee was in violation of the policy. Does a violation of the policy warrant a written warning?
[Bischoff] Here’s the lawyerly answer – it depends. Absent a collective bargaining agreement with a union, employers have discretion to determine what discipline to give to an employee for any infraction. That said, employers should operate with a sense of fairness. Here are questions the employer should be able to answer when determining the appropriate discipline.
- Has a written warning been issued for a uniform violation before?
- Would a written warning get the employee to comply in the future?
- Would a written warning set the right tone in line with the company’s culture?
There are many different levels of discipline. Even in nonunion workplaces, employees expect that employers will use progressive discipline, discipline that starts mild and ends severe – verbal warning, written warning, (maybe) suspension, and finally, termination. Depending on the misconduct, employers can then escalate to the appropriate level when the misconduct is repeated. However, the more severe the infraction, the more severe the discipline. If an employee is tardy three times, a verbal warning may be appropriate. If an employee steals a company car, the employee should be fired.
Employers have the discretion to select whatever discipline they deem fitting. When determining the right level of discipline, employers should consider other discipline given to the employee, what has been done in the past, and what level would stop the misconduct going forward.Employers: “A policy prohibiting stupid isn’t a prerequisite to discipline.” - @k8bischHRlaw #HRClick To Tweet
Sometimes employees don’t make the same mistakes twice. They do make a lot of mistakes though. If an employee is constantly violating company policy, but not doing the same infraction, is it okay to start progressive discipline?
[Bischoff] Yes. Let’s say Jeremy showed up to work a half hour late. He gets a verbal warning. He doesn’t show up in his uniform on a different day. If Jeremy hadn’t already received a verbal warning, Jeremy would have received another verbal.
Some employers would run two series of discipline – one for the tardy another for the uniform – so Jeremy would have two verbal warnings. Other employers would have only one track, meaning Jeremy would have a written warning for the uniform because he had already received a verbal warning. Again, the discretion is with the employer. Provided the employer handles these matters consistently, there isn’t a problem.
Let’s talk about the paper ripping incident. I can see both sides here. On one hand, the employee ripped up a company document. On the other, the employee was venting, which we all do sometimes. I don’t know that we can say who’s right but what are the pros/cons of disciplining the employee for this?
[Bischoff] I totally get the need to vent. However, venting by ripping up a policy I’d just violated in front of my supervisor sounds awfully sassy to me. Sassy to some can be insubordination to others. While we don’t know all the facts here, the employer was within its rights to discipline, including suspending the employee. The pros of suspending would be stopping the behavior because the gravity of the discipline is pretty substantial.
The big con here could be how other employees would view the discipline. Even though we try to discipline confidentially, other employees learn about discipline quickly especially if an employee is suspended and not there. Whether we want them to or not, employees take sides. If they viewed the suspension as unfair or retaliatory, then it will affect morale and overall productivity. If they saw the ripping up and it was sassy, the suspension might actually improve morale.
Final question, and this is for the organizations out there reading this scenario. If a company is faced with a situation like this and wondering the best way to proceed, what should they do?
[Bischoff] Employers should first try to ascertain what happened, which includes speaking with the employee and the manager. Then, review the employee’s history to determine if there has been other discipline, review any relevant policies or other similar discipline that has similar circumstances, and finally talk with the supervisor about the appropriate level of discipline.
Lastly, have a candid conversation with the employee about the situation. While disciplining is really important to the overall health of an organization, making sure the employee understands what is happening and whyis equally important.
A HUGE thanks to Kate for helping us with this. If you want to read more of Kate’s insights, be sure to check out her blog. It’s a must read.
There are a lot of moving parts to progressive discipline. The key is to be consistent. And Kate didn’t mention it, but I will, if you’re an HR pro and need someone to listen and bounce some thoughts around with, don’t hesitate to call a legal professional. They are very good at this. And it’s often better to have these conversations on the front end.
Image captured by Sharlyn Lauby after speaking at the 2016 MBTI Users Conference in San Francisco, CA18