HR Management & Compliance

Not Discipline, ‘Opportunity to Improve’


Yesterday’s Advisor presented attorney Jathan Janove’s suggestions for dealing with employees who say, “My aberrant behavior was caused by my disability.” Today, we’ll give you more of his tips plus an introduction to a new training option.


When you have to move forward with discipline, says Janove, the first thing is to always couch it in positive terms. Make an employee an offer to improve, says Janove.


For example, you might issue a “Notice and Opportunity to Improve.” This document should focus on the opportunity to improve but should clearly warn of the consequences for not improving.


Janove is a partner in the Portland, Oregon, office of Ater Wynne LLP. His suggestions came at a recent SHRM conference.


Consistency Part of Due Process


When faced with an employee who says his or her misbehavior was caused by a disability, the EEOC says that the company may still discipline as long as the rule violated is shown to be job-related and necessary for the conduct of the business. That is, it can’t be a frivolous or casual or silly rule.


However, satisfying those EEOC guidelines is not going to be enough if the actions you take against the employee aren’t consistent with your actions against other employees, Janove warns.


Consistency is the missing ingredient that many HR managers forget about until it’s too late, says Janove.


For example, if you discipline an employee for swearing and yelling and the person claims that “It was because of my disability,” you’ll lose out if you’ve tolerated similar behavior from other employees.


And then there’s consistency’s partner—nondiscrimination. Presumably, if you treat people consistently, you’ll also be acting in a nondiscriminatory manner, but it’s a good idea to look at the situation from another perspective. Am I treating employees in x protected status the same as I treat employees in y and z statuses?


Do a Consistency Review 


So, says Janove, always make a consistency review part of HR’s work in preparing discipline. Do you have a consistent track record of discipline for this offense? Could your action be perceived as discrimination? Also review policies, contracts, and personnel documents to be sure the action is appropriate, he says.



Announcing BLR’s unique new Employee Training Center. Employees train at their convenience 24/7. We track, you save. Give it a whirl, with no cost or obligation.

When Collective Bargaining Is Involved


What about when an employee says his outrageous behavior is excused, not by a disability, but by his union status? Janove points to one case in which there was to be a temporary layoff—a mandatory unpaid vacation—while the company completed moving to a new facility.


One worker was, to say the least, outspoken. He verbally attacked a female manager, shouting that the layoff was illegal and immoral, and he unloaded with four-letter words. Later he bragged about how he “showed her” and put her in her place.


An administrative law judge held that the worker had gone beyond the scope of protected activity for union members. His union rights did not excuse foul language directed at the manager in front of her employees. The court found the bragging to be undermining and unnecessary to protected activity.


However, says Janove, showing how tricky these cases are, that decision was reversed, and then a higher court reversed again.


How about your managers? Are they handling discipline well? Are they coached in how to handle employees who have disabilities? Who are union members? And while we’re at it, how about hiring and firing and a dozen other challenges they face? They’re doing those things, but the question is, are they doing them right?


If you’re not sure, it’s time for training. But training’s a hassle—authorizing, planning, delivering, tracking—it’s easy to let this critical priority slip.


Fortunately, there’s good news—BLR® has created a unique and helpful solution called the Employee Training Center. 


This turnkey service requires no set up, no course development time, no software install, and no new hardware. Your employees can self-register, and training can be taken anytime (24/7), anywhere with nothing but a PC and an Internet connection. Courses take only about 30 minutes to complete.


Just as important, the Employee Training Center automatically
documents training. As trainees sign on, their identifications are automatically registered. When the program is completed, the trainee’s score is entered. So, when you want to see who has or hasn’t yet trained on any subject, or look at the across-the-board activity of any one employee, it’s all there, instantly available to you, your boss, an inspector—even a plaintiff’s attorney.


These are all motivational, actionable programs—for both employees and supervisors—in such key areas as sexual harassment, FMLA, diversity, communication, USERRA, recruiting, and many more. The courses are kept up to date to reflect federal and state regulatory changes, and, what’s more, we add new programs continually.




Unlimited employee HR (and safety) training—one low cost. Check out BLR’s remarkable new Employee Training Center. All online, so your employees train whenever they want, 24/7. No setup, no software to install. Learn More.

Course certificates can be automatically generated from within the training center, and are automatically retained for record-keeping purposes.


The Employee Training Center also includes a similar selection of safety courses—you decide whether you want just the HR courses, the safety courses, or both the HR and safety modules.


And, from the standpoint of your CFO (a truly important standpoint in these tight times), you always know exactly what training will cost, no matter how many programs you use or how many times you use them. There’s just one low annual fee—for unlimited training—calculated by the size of your workforce. Budget once and you’re done!


If it sounds like we’re excited about this new service, well, we are—and we think you will be, too. We urge you to sign up for a no-obligation demo by visiting the new Employee Training Center. Or, feel free to call our customer service people at 866-696-4827.

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