Disciplining employees: How to avoid mistakes that get you into trouble

It’s one of life’s unfortunate realities: If you’re a manager, you’re going to have to discipline an employee at some point. As a steward of the company, it is your responsibility to address employee transgressions – be they small, recurring or huge.

Here are four steps you can take to make your employee discipline actions foolproof.

1. Change your inner voice

If the thought of having to talk to employees about their poor performance makes you uncomfortable, the worst thing you can do is avoid the issue.

Letting your frustration build for weeks and months can result in you handling the situation poorly when you do give a verbal or written warning.

Instead, reframe the discussion in your mind from “This will be a difficult conversation” to “I want to help my employee be an effective contributor.” Such a shift can help change your discomfort into a more positive attitude. After all, you want your employees to be the best they can be, right?

It may also help to put yourself in the employee’s place. You’d want to know if your boss thought you were failing and would like the chance to improve your performance. Giving your employees that benefit of the doubt does two things:

  • It gives good and mediocre employees the chance to improve and meet expectations, which is preferable to spending time and money replacing an employee for poor performance.
  • It helps you identify employees who are truly bad apples and don’t care about keeping their jobs.

Remember, letting your frustration build prevents your employees from correcting their performance as quickly as possible and contributing to the company’s success. Bite the bullet and nip situations in the bud.

2. Keep your employee handbook flexible

When developing an employee handbook, many managers tend to want hard and fast rules. For instance, “Any employee who arrives late to work more than three times in a month will be terminated.”

The problem with using absolute terms, such as “will,” is that it leaves you no room for flexibility should employees have a legitimate reason for tardiness. To be fair and above reproach, you’ll have to follow your policy. This means you’ll be obligated to fire the good employee who has never had attendance problems before, just as you did the chronically late employee with poor performance.

Further, the lateness may be the result of temporary circumstances, such as illness or a more serious condition that may be protected under the Americans with Disabilities Act, in which case a change in start times may be a reasonable accommodation.

Flexibility in your wording gives your managers the opportunity to respond appropriately to reasonable mitigating factors. It’s often as simple as substituting “may” for “will.”

That said, your company is still obligated to discipline employees in a generally consistent manner. This means you must discipline your favorite employee the same as you do your least favorite employee.

Here is another example of a handbook that leaves flexibility in how inappropriate behavior might be handled:

… Although it is not possible to list all forms of inappropriate behavior and conduct, the following are examples that are considered inappropriate and may result in disciplinary action up to and including termination of employment (followed by examples of conduct that is considered “inappropriate”): …

You can be very detailed with your list of inappropriate behaviors, but make sure it’s culturally consistent. For instance, if your CEO is famous for speaking loudly when he gets frustrated, you can’t prohibit that behavior in your handbook.

You should also be careful that any policies avoid a chilling effect on an employee’s rights under Section 7 of the National Labor Relations Act.

3. Document details of all disciplinary conversations

It’s not enough to keep a detailed journal of every time an employee calls in sick on Monday, or every time two employees argue. For that information to be effective, you must communicate that you’ve noticed a trend and the behavior is troublesome.

Your first stop should be verbal counseling. Explain that the employee’s conduct or poor performance is unacceptable. After listening to the employee and discussing corrective action, explain that repeated or continued unacceptable performance will result in more severe disciplinary action.

After your discussion, send the employee an email outlining the facts of your conversation, making sure you accurately and concisely detail what was said and what the expectations are going forward. Ask the employee to reply if there are any misunderstandings in your explanation.

This email is enough documentation to establish a pattern of poor performance or inappropriate behavior, should you need to progress to a written warning or termination. If you address the situation before you get entirely frustrated, it will be easier to keep emotion out of the email and stick to provable details.

You can’t stop employees from accusing you of wrongdoing or favoritism when it comes to discipline. You can, however, put documentation in place to minimize the appearance of wrongful termination and then follow your employee handbook to ensure consistency.

4. Ensure consistency across the organization

How can you make sure your people managers are following proper procedures when it comes to employee discipline? The first piece of this puzzle is accomplished with the employee handbook. Well-thought-out written policies give managers a map to follow.

The handbook should outline any steps deemed necessary by your organization. This usually features a progressive discipline policy of verbal counseling, then written counseling, then termination. Your company doesn’t necessarily have to allow 30, 60 or 90 days for change. It depends on the problem.

It may be reasonable to expect attendance or tardiness issues to be resolved immediately, while performance issues may require time for additional training and learning. Again, your policies should be flexible enough to accommodate the wide range of issues and circumstances your managers are likely to face.

Another handy way to ensure your managers aren’t being overly emotional in their approach to discipline is to use a team model. To do this, have the manager ask their supervisor or manager in another department to serve as a sounding board to review their notes about the problem employee and any written communications about that employee.

This sounding board should point out any bias in the documentation, such as “You’re always late.” Better wording would be, “You were 25 minutes late coming back from lunch on Monday, June 7, and clocked in 30 minutes late the mornings of June 10 and June 15.”

This person should look at every document with fresh eyes and consider:

  • How would the EEOC or NLRB view this documentation? How would a jury interpret what is here? Do the wording and actions taken feel fair? Is there any inflammatory language?
  • Is the written documentation clear about expected behavior going forward, with fair deadlines and consequences clearly defined?
  • Would a jury or attorney feel that the employee was warned and knew (or should have known) that their job was in jeopardy?

It’s always best to slow down and review the matter calmly and with an open mind. Yes, further action or even termination may be the right course of action, but gathering facts and details now can prevent headaches later.

Learn more about the ins and outs of employee discipline policies by downloading our free e-book, Employment Law: Are You Putting Your Business at Risk?