Discipline. Aside from performance appraisals, it’s probably the most neglected, most-often-put-off job in management. Managers and supervisors hate to deliver discipline, but delay is disaster.
“I’ll ignore it—Let’s see if Jack will improve on his own.”
Jack is a longtime employee, a copywriter in Jill’s Marketing Department. During the past several months, he’s been coming in late often, sometimes delaying department tasks and sometimes missing early meetings. Jill says, “Let’s give him a few more weeks; we’ll hope he improves on his own before we have to take any action.”
This is a typical response, especially of newly minted managers who want to avoid confrontation. But ignoring creates at least three problems:
- Jack assumes that his behavior is OK—no one’s said anything to him about it.
- Jill appears to be condoning the behavior
- Other employees are wondering why they are bothering to come in on time.
Typically, there’s a fourth problem as well—Jill is probably treating Jack like a good-performing employee, giving him a raise and a bonus just like the other good-performing employees.
“I’ve had enough, you’re fired.”
Eventually, Jill’s had enough of Jack’s lateness and she fires him. Unfortunately, where she was too lenient before, now she’s been too harsh. Jill has ignored any sort of progressive discipline. That could come back to haunt her because chances are that other employees who have had lateness problems haven’t been fired.
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“He’s at will—I can fire him no worries.”
When HR approaches Jill about the situation, she says, “Why are you worried? Jack was an at-will employee. I can fire him for any reason or no reason.”
In most states, that’s true… as far as it goes. But there are two problems:
First of all, there are a lot of exceptions to employment at will, and Jack is likely to mention some of them.
Second, in court, if Jack should sue (he will), it’s hard when your defense is “I fired him for no reason.” Juries aren’t going to buy it.
“I fired Jack because of his poor performance.”
Jack sues, mentioning one or more of the exceptions to employment-at-will. He could say, for example:
“You’re discriminating—You fired me because I am a member of a protected group.”
“You’re retaliating—You fired me because I made a complaint to the EEOC.”
“You’re violating public policy—you fired me because I blew the whistle on accounting irregularities.”
“You fired me in violation of our employment agreement that requires progressive discipline.”
“You fired me because I requested FMLA leave.”
“You fired me because I complained about my pay.”
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“We’ve been sued?”
Now Jill’s going to have to deal with two questions:
1. Was her action consistent with policy and previous violations?
If there’s a progressive discipline policy, she didn’t follow it and that won’t help the company’s case.
If her action was not consistent with how other similarly situated employees have been treated for the same offense, that’s another strike.
2. Is there strong evidence of Jack’s misbehavior?
Often in these situations, although the manager will say the poor behavior is well-documented, when push comes to shove, there’s little or no documentation. And, of course, that’s going to put the company in a difficult position.
Unfortunately, it’s not unusual for both questions to be answered “No.” That is:
- There is a progressive discipline policy and Jill didn’t follow it.
- Others have attendance records as bad or worse than Jack’s, but they were not terminated.
- The attendance records are spotty or missing.
Can this get worse? Oh yes, as we’ll see in tomorrow’s Advisor. (Plus you’ll get an introduction to a special guide especially for smaller or even one-person HR departments.)
Unfortunately, you can almost put money on the fact that “Jack” is NEVER going to improve on his own–decisive disciplinary action is necessary to keep the problem from getting worse.