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Firing or disciplining employees: 10 factors to consider before you lower the boom.

Will your decision to discipline or terminate an employee come back to haunt you? Arbitrators, mediators and juries consider many issues when faced with employment litigation or arbitration. The steps identified here are the most common factors considered by those who will be hearing the claims of your (former) employee. Analyze the factors prior to taking any adverse action.

1. What is the employee's work record?

A sterling disciplinary record can mitigate consequences of a current lapse in judgment. Similarly, the discharge may be upheld when considered with an employee's poor past performance. Lesson: document employee infractions and notify the employee of the violation when it occurs.

2. How long has the employee been employed?

A long record of unblemished service will favor the discharged employee, with jurors and arbitrators recognizing the hardship caused by loss of seniority. Before disciplining or terminating a long-term employee, review total employment records rather than focusing on isolated events.

3. Did the employee have notice of the rules and consequences?

Did the employee know what would happen if he broke the rule? Jurors and arbitrators need to determine whether the employer treated the employee fairly. Have employees sign an acknowledgement indicating they have read, understand and received a copy of the rules. Post work rules and consequences in prominent places, such as break rooms or near time clocks.

4. Has there been lax enforcement of the work rules?

Lax enforcement of rules works to the employers' detriment in litigation and arbitration. The employer who has knowingly condoned behavior that violates company policy may signal to employees that the behavior is acceptable. Notify your workforce as soon as possible that your company is affirming its policy that violations will be punished and may lead to termination--then do it!

5. Is the work rule reasonable?

If the employee violated a work rule to maintain a safe work environment, the discipline may not be upheld. Employers must review the violation of the work rule in the context that it occurred.

6. Are the rules enforced consistently and uniformly?

The savvy employer engages in "like treatment for like circumstances." Consistent enforcement of rules and evenly applied discipline is key to a successful defense.

7. What was the length of time between the rule violation and the discipline?

The more time that elapses between the rule violation and the discipline, the less likely a juror or arbitrator is to believe the disciplinary action is for the reason stated by the employer. Discipline should be swift and accurate.

8. Is there evidence of a perceived bias against the employee?

Did the disciplined or terminated employee recently engage in union organizing activities, report an OSHA violation or file a charge with the EEOC? If so, the employee can claim he is being disciplined in retaliation for these activities. In these situations, employers must take special care by investigating and supporting the reason for the discipline and accurately documenting the reason for disciplinary action taken.

9. Is there any management culpability?

Before terminating an employee, consider whether management is also at fault in connection with the employee's conduct. If management's role cannot be minimized, decision-makers are less likely to uphold the disciplinary action taken.

10. Was a thorough investigation conducted?

Prior to disciplining an employee, employers must conduct a thorough investigation. This is particularly critical when sexual harassment is alleged. Part of the investigation must include asking the employee subject to the disciplinary action for his side of the story and following up on the employee's explanation.

It is important to disseminate rules and regulations and enforce them in a consistent, non-discriminatory manner, to take time to review an employee's whole record and to conduct a thorough investigation before considering termination.

By Patricia Nemeth, J.D.

Patricia Nemeth is the founder of the Detroit law firm Nemeth Burwell PC, a member of the Detroit Regional Chamber.

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Title Annotation:workforce central
Author:Nemeth, Patricia
Publication:Detroiter
Geographic Code:1USA
Date:Jul 1, 2005
Words:646
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