9 tips for conducting employee discipline in California

Employee discipline in California – even including termination – is possible, but employers will be well-served to cross their t’s and dot their i’s in the process. Having documentation of all aspects of the disciplinary process is vital. Documentation:

• Creates a roadmap to justify current and subsequent disciplinary measures.
• Helps supervisors and managers assess the situation and determine the appropriate disciplinary measure to apply.
• Informs succeeding supervisors and managers of employees’ prior misconduct or performance issues.
• Memorializes the discussions and warnings given to misbehaving and poorly performing employees.
• Serves as legal evidence to defend a wrongful termination lawsuit.

“[I]f you really want to terminate an employee because of poor performance, you need to document it. You need to look at the basis for the misconduct and ask yourself whether or not this is an actual basis for terminating this employee.” Kristine E. Kwong outlined in a recent CER webinar. This advice holds true even if the discipline does not go to the level of termination—documentation is important in any case.

9 Tips for Conducting Employee Discipline in California

While documentation is a necessary part of any disciplinary process, here are 9 tips for conducting the employee discipline process successfully and reducing risks along the way (it’s easy to see where documentation plays into many of them):

1. Review all applicable documents before taking disciplinary action.
2. Stick to the language in your policies when describing the conduct at issue.
3. Define your desired result before imposing any disciplinary measures.
4. Clearly articulate the consequences of non-compliance and all applicable deadlines.
5. Train supervisors and managers on your discipline policies to ensure consistent application.
6. Train supervisors to be precise and accurate in employee evaluations. A stellar performance review may be easy for a supervisor to give, but it will undermine discipline if problems are never documented during performance reviews.
7. Create and maintain detailed records: performance reviews, disciplinary actions taken, conversations held, etc.
8. Follow your own policies and deadlines, and do so consistently. (A policy isn’t helpful if it is ignored).
9. Review the timing of employee discipline. If it comes after a protected act (such as whistleblowing) – and especially if the timing is not near the time of the incident for which the discipline is being meted out – this sends red flags and looks retaliatory.

“The most important [tip] is that you need to follow your policies and you need to make sure that what you are disciplining the employee for actually happened. So, you’re not basing it on rumor, but you are basing it on something that actually did occur.” Kwong advised.

The above information is excerpted from the webinar “Terminations in California: How to Successfully Navigate Legal Minefields.” To register for a future webinar, visit CER webinars.

Kristine E. Kwong, Esq. is a partner in the Los Angeles office of law firm Musick, Peeler & Garrett, LLP. (www.mpglaw.com) Her practice includes the drafting and updating of handbooks, policy manuals, codes of conduct, and severance packages, and she regularly produces and presents training programs for employers on current issues of employment law.