New supervisors are eager to show that they are "boss," and they may think that harsh discipline is the way to establish themselves. That is often not the best way to get individuals moving and to keep up department morale, says attorney Jeffrey Wortman.

Achieving fairness in discipline is a balancing act, and new supervisors need to learn how to be fair when disciplining their employees, says Wortman, a partner in the Los Angeles office of national employment law firm Seyfarth Shaw, LLP. He offered his discipline tips at BLR's annual Employment Law Update conference in Las Vegas.

It's relatively easy to check yourself for fairness, says Wortman. Ask, "Would a group of strangers conclude that the employee was treated fairly? (Those strangers might pop up on a jury.)

Wortman offers seven principles for imposing discipline:

1. Develop Clear and Fair Standards

Start with clear standards, says Wortman, and obtain and maintain evidence that employees were given notice of the standards.

2. Apply Standards Uniformly and Consistently

When you are not consistent in following procedures and imposing discipline, there's always the possibility of a discrimination charge. Nevertheless, being consistent doesn't mean that everyone gets treated exactly the same way. For example, it's OK to treat someone with 6 months of service differently from someone with 20 years of loyal service.

3. Give Problems Immediate Attention

Don't wait until a problem becomes serious, says Wortman. Review performance regularly. When problems develop, discuss them with the employee and suggest ways of correcting the situation. Document these discussions.

Issue oral (but documented) and written warnings for specific problems. Follow a progressive discipline procedure (it does not have to be part of a "progressive discipline program") before serious discipline except in the most extreme cases, he says.

Announcing BLR's unique new Employee Training Center. Employees train at their convenience 24/7. We track. You save. Check it out with no cost or obligation. Go here.

4. Be Candid

If the employee's undesirable behavior continues, arrange a meeting with the employee to discuss the precise aspects of work behavior that are unacceptable. No beating around the bush; discuss facts and actions.

Develop a written performance improvement plan that specifies each action or activity that must be corrected, and set a deadline. Make it clear that failure to comply could result in discharge.

5. Maintain Open Communication

Many problems can be resolved through open communication and thoughtful consideration of all circumstances, Wortman notes. Consider the employee's reasons for the behavior and explain why those reasons are unacceptable (or, maybe the employee's reasons have some validity, in which case you probably need to rethink the situation).

Document your discussions.

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 set-up, no software to install. Learn More.

6. Give the Employee a Chance to Improve

Perceived fairness requires that the organization offer ample opportunity for the employee to improve. If someone is ultimately terminated, it should be obvious that it was coming. And an outside observer (government agent, judge, or jury) should conclude that termination was a logical action.

Consider a formal "last chance agreement," suggests Wortman. These agreements are forceful tools, readily understood by both employees and outsiders.

7. Keep a Record

The record that you make of performance evaluations, performance counseling, corrective discipline, and last-chance agreements is often what makes or breaks your defense during litigation, says Wortman.

Concerns When Applying Discipline

Wortman offers the following additional tips:

  • Don't "create a paper trail" for just one employee. When you single out an employee for documentation to "build a case," it looks suspicious.
  • Don't be overly harsh. Overly harsh discipline smacks of unfairness and singling someone out. It also can lead to morale and retention problems among other employees, Wortman points out.
  • Be wary of using unequivocal terms. For example, stating "Any instances of absenteeism in the next 90 days will result in immediate termination." That leaves no wiggle room, and it may be a promise you can't keep.

In tomorrow's Advisor, more help from Wortman and an introduction to a unique new on-line training system.