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 haunt
v. haunt·ed, haunt·ing, haunts
1. To inhabit, visit, or appear to in the form of a ghost or other supernatural being.
2. you? Arbitrators, mediators and juries consider many issues when faced with employment litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.
When a person begins a civil lawsuit, the person enters into a process called 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 (language) LAPSE - A single assignment language for the Manchester dataflow machine.
["A Single Assignment Language for Data Flow Computing", J.R.W. Glauert, M.Sc Diss, Victoria U Manchester, 1978]. 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 Any loss or harm to a person or property; relinquishment of a legal right, benefit, or something of value.
Detriment is most frequently applied to contract formation, since it is an essential element of consideration, which is a prerequisite of a legally enforceable contract. 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 juror n. any person who actually serves on a jury. Lists of potential jurors are chosen from various sources such as registered voters, automobile registration or telephone directories. or arbitrator arbitrator n. one who conducts an arbitration, and serves as a judge who conducts a "mini-trial," somewhat less formally than a court trial. In most cases the arbitraror is an attorney, either alone or as part of a panel. 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 OSHA
Occupational Safety and Health Administration, a branch of the US Department of Labor responsible for establishing and enforcing safety and health standards in the workplace. violation or file a charge with the EEOC EEOC
Equal Employment Opportunity Commission
EEOC n abbr (US) (= Equal Employment Opportunities Commission) → comisión que investiga discriminación racial o sexual en el empleo ? If so, the employee can claim he is being disciplined in retaliation RETALIATION. The act by which a nation or individual treats another in the same manner that the latter has treated them. For example, if a nation should lay a very heavy tariff on American goods, the United States would be justified in return in laying heavy duties on the manufactures and 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 culpability (See: culpable) ?
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 sexual harassment, in law, verbal or physical behavior of a sexual nature, aimed at a particular person or group of people, especially in the workplace or in academic or other institutional settings, that is actionable, as in tort or under equal-opportunity statutes. 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 dis·sem·i·nate
v. dis·sem·i·nat·ed, dis·sem·i·nat·ing, dis·sem·i·nates
1. To scatter widely, as in sowing seed.
2. 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.