It’s important to remember that discipline must be applied consistently among all employees. For example, if employee A and employee B, similarly situated, engage in similar misconduct, both employees should receive the same type of discipline. Ignore this rule at your peril.
Inconsistent discipline is difficult to explain and can help an employee argue that he or she received harsher discipline because of a protected characteristic such as race or gender.
In addition to maintaining consistent disciplinary practices, you should ensure that you keep a written record of the discipline. Even if the employee merely receives an oral warning, there should be some notation in the personnel file.
Written records make it easier to show a jury or judge how you advised employees that their conduct was unacceptable and gave them another chance. It’s difficult to later argue that you didn’t promote an employee because of his or her tardiness issues when there’s no record that you ever disciplined the employee for being tardy.
The Ultimate Discipline
The same rules apply to the ultimate discipline: termination. For example, if you suspend employee A for misconduct but fire employee B for engaging in the same misconduct, you will quickly find yourself in a difficult position.
In a lawsuit, employee B can easily create an inference that his dismissal must have been for some impermissible reason rather than for his alleged misconduct. While you can attempt to offer an explanation for the inconsistent treatment, it may fall on deaf ears.
The complete guide to legally compliant terminations in California—just updated! Learn more.
Bottom Line
You should look at every employment decision you make from all angles and determine whether it could be misconstrued to support an employee’s claim.
If you find yourself having to provide a complicated explanation for your decision, chances are you need to step back and reevaluate whether it could withstand scrutiny in a lawsuit. Otherwise, you may find yourself in a difficult position when trying to defend your decision.
Terminations: A Complete Guide for California Employers
Whether it’s a termination, constructive discharge, layoff, or forced resignation, ending an employment relationship is a legal minefield that you should navigate only after careful consideration and adequate preparation.
Knowing when to terminate an employee is just as important as knowing how to terminate an employee. Even though most employment relationships are “at-will,” meaning you can terminate the employee at any time, what you say and do during the employment relationship can significantly impact how you must treat employees before letting them go.
Don’t make a move without checking out our newly updated reference manual, written specifically for California employers.
Terminations: A Complete Guide for California Employers covers everything you need to know about both voluntary and involuntary separations, including:
- Lawful vs. unlawful employee terminations;
- Employee discipline;
- The importance of documentation;
- How to create a paper trail that protects you in the event of litigation or threatened litigation;
- A step-by-step process for investigating alleged workplace misconduct;
- Termination considerations for all situations: poor performance, misconduct, personality issues, insubordination, tardiness, and absenteeism;
- Special pretermination considerations to keep in mind for employees on leave, unionized employees, and more;
- The state and federal rules on mass layoffs and RIFs;
- What to do when an employee resigns—and when a departure might be considered a constructive discharge;
- Important termination and resignation documentation you must keep on file;
- Payroll considerations for departing employees: final paycheck rules and more;
- Tips for effective termination meetings and exit interviews that both provide you with needed information and help keep you out of legal trouble;
- Legal do’s and don’ts for giving references;
- Employee rights to unemployment benefits in California;
- How to protect your company from termination-related lawsuits;
- And much more!
Best of all, we’ll send you a brand-new edition each year so you always have the most up-to-date policies available.
New for the 2014 Edition:
- The latest information on groups with protected status under FEHA
- Prohibited discrimination covered under state laws other than FEHA
- Why you need to keep the NLRA in mind even in a nonunion workplace
- When to consider hiring a third party to conduct an investigation
- How recent NLRB decisions affect prohibitions on employee discussions
- Termination notices required under California law
- New considerations for employee investigations
- And more!
It’s like having a California employment lawyer on call, working on your most pressing termination questions and concerns, at a fraction of the cost! Don’t delay—order today, and make sure your termination processes are in order, before you get sued.
<p>Download your copy of
<strong><em><a href=”http://ced.blr.com/2013/05/how-to-survive-an-employee-lawsuit-10-tips-for-success-2/”>How To Survive an Employee Lawsuit: 10 Tips for Success</a></em></strong> today!</p>