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Documentation, Discipline, and Discharge

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I. INTRODUCTION

Under Georgia's at-will provisions, employers are free to discipline or discharge employees provided that the adverse employment action is not motivated by discriminatory intent or administered in a discriminatory manner. Employers must be cautious when disciplining or discharging an employee covered by any one of the expanding list of federally protected classes -- age, race, color, national origin, disability, religion, sex, or status as a Vietnam-era or special disabled veteran. Although under the at-will doctrine an employer need not articulate any reason for discharging an employee, if that employee fits within one of the protected classes, then discrimination may be suspected or inferred. Moreover, if the employer has adopted a written policy or employee handbook but does not follow the stated procedures, then discrimination against a "protected" employee may also be inferred.

For these reasons, employers must be careful when making employment decisions. If a policy or handbook has been adopted, it should be followed. The employer must keep records of how similar situations were handled in the past. Similarly-situated employees should be treated the same. Finally, accurate documentation of annual evaluations and disciplinary action must be maintained in personnel files. Accurate documentation provides the necessary "paper defense" should the issue evolve into a lawsuit.

Prior to making any employment decision, always:

  1. Review the handbook/policy;
  2. Determine what the employer did in the past under similar circumstances;
  3. Determine whether the employee has been disciplined in the past;
  4. Determine whether past discipline is documented.

II. DOCUMENTATION

A. Generally.


Documenting employee discipline and performance is time-consuming, burdensome, and unenjoyable. For this reason, documentation is often inconsistent, haphazard, inaccurate, or insufficient. If at all possible, a management representative should be designated to coordinate or monitor this area for all employees. Managers and supervisors should be trained to document employee discipline and performance when a problem first arises. With the proper framework in place, the once tedious process of documenting employee discipline and performance can be streamlined. The proper framework can also add consistency and uniformity to the process. Consistency is critical in making fair employment decisions and, if necessary, defending those employment decisions in court.

Consistency means documenting infractions for known problem employees as well as model employees. For example, if the employer strictly enforces a tardiness policy for the problem employee who falls within a protected class but not for the model employee who does not fall within a protected class, then the employer could face a discriminatory treatment claim. In other words, be consistent with all employees.

Generally, employers should insist that employees sign an acknowledgment when they are disciplined or warned about an employment policy. If the employer decides to discharge that employee for a subsequent infraction, the employer then has documentation to prove that the employee was specifically warned but chose to continue engaging in the prohibited activity. If an employee refuses to sign an acknowledgment, the employer can discharge the employee for insubordination. This policy is commonly known as a "sign-or-be discharged" policy.

CAVEAT: A recent Fifth Circuit decision, NLRB v. McCullough Environmental Services, Inc., addressed the issue of implementing a sign-or-be-discharged policy for discriminatory reasons. In that case, the alleged discriminatory reasons were union activity. The Court found that the management decision-maker could implement a new policy or begin enforcing an existing policy if, prior to implementing or enforcing the policy, he/she did not know of the employees union activity and the employee's union activity was not a motivating factor in the employment decision. Therefore, employers must look at the existing workplace circumstances prior to implementing a sign-or-be-discharged policy.

Listed below are suggested items to include in the documentation of various employment actions: hiring, evaluations, discipline, and discharge. Sections III and IV below discuss the areas of discipline and discharge in more detail and list practical suggestions for conveying the decision to the employee and recommendations to avoid common problem areas.

  1. Hiring Documentation

  2. Applications
    •  
      • Applications should be completed in full
      • If an application is old, have applicant update or complete a new application<
      • If applicable, the "equal opportunity employer" legend should appear on the application
      • Application forms should include a general release enabling the potential employer to contact prior employers for reference checks
      • Instruct employees involved in the interviewing process to refrain from writing subjective comments on application forms
      • Application forms should be periodically reviewed to ensure compliance with constantly changing employment laws
      • Applications should be signed and dated by applicant
      • Immigration forms
      • I-9 must be completed


  3. Evaluations

    Evaluations are a means for an employer to determine whether an employee is meeting expected performance standards. Evaluations also give an employer the opportunity to discuss and document unacceptable performance or performance which is below the expected standard. Evaluations allow the employer and employee to map out future goals and expectations concerning the employee's performance. An accurate, thorough evaluation can be relied upon for future disciplinary action, including discharge. In many cases, the evaluations are the only documentary evidence upon which an employment decision can be based. For this reason, unacceptable performance must be accurately documented on the evaluation.

    The following guidelines apply to performance evaluations:
    • If policy or handbook addresses evaluations, follow policy or handbook
    • Evaluations should be written
    • Evaluations should be periodically conducted based on an established timetable, e.g., annually
    • Be consistent/uniform application to all employees
    • Evaluations should be accurate, honest, and realistic -- not every employee is a 10 or outstanding
    • Develop specific performance ratings: unacceptable, below expectations, meets expectations, exceeds expectations, outstanding
    • Avoid general performance ratings: satisfactory/ unsatisfactory
    • Give constructive criticism, if necessary
    • Document strengths, weaknesses, and areas to improve
    • Document unacceptable performance, if applicable
    • Map out future performance or expected improvement, including specific standards which must be met and set specific timetables
    • Have Human Resources or next level supervisor review to avoid unfair, partial, or biased evaluation and to add consistency
    • Allow opportunity for employee to review and discuss evaluation
    • Allow opportunity for employee to add written comments on evaluation
    • Require employee to sign and date evaluation
    • Require evaluator to sign and date evaluation

  4. Discipline

    Items to include when documenting disciplinary action are:
    • All disciplinary action should be recorded in writing and kept in employee's personnel file
    • Cite specific rule violation or employment problem
    • List all applicable information including date of infraction and witnesses if appropriate
    • List prior disciplinary action taken on same issue
    • List specific future course of action including timetable
    • Require employee to sign and date disciplinary action
    • Require supervisor and witness to sign and date disciplinary action

  5. Discharge

    Items to include when documenting discharge decisions are:

    • See items listed under "Discipline"
    • Draft Department of Labor Separation Notice
    • Prepare COBRA letter if applicable
    • Prepare retirement benefits letter if applicable

III. DISCIPLINE

Do not avoid the unpleasant. Disciplining an employee is one of the most difficult tasks a supervisor must perform, next to terminating an employee. A "wait and see" or "things will get better" approach normally only adds to the problems. Co-employees will resent that another employee is getting away with something, thereby creating a morale problem. By counseling or disciplining an employee as soon as a problem arises, the employer is able to dictate the course of proceedings for existing and subsequent problem employees. By confronting the employee, things may improve immediately. Even if the problems do not improve, the employer has created the necessary "paper defense" in the event the employee is ultimately discharged.

Employees must be aware of the rule or policy for which they are being disciplined. If the employer uses a written policy or handbook to inform employees of work rules, the employee should sign an acknowledgment that he/she received the policy or handbook. The acknowledgment form rebuts any claim that the employee lacked knowledge of the work rule for which disciplinary action was taken.

To ensure consistency and minimize disparate treatment claims, a designated member of management or a Human Resource representative should review all serious disciplinary action. At the very least, prior to taking any action, a supervisor should consult another supervisor to obtain a neutral, unbiased, second opinion. A second opinion may preempt a decision made in the "heat of the moment" or it may confirm that the proposed action is appropriate under the circumstances.


A. Progressive Discipline

Employers have adopted many types of procedures for disciplining employees. One of the more popular methods is the "progressive discipline" model. Progressive discipline is designed to improve employee performance while allowing the employer to document its efforts should discharge be necessary. Progressive discipline provides for a series of steps designed to remedy problems. If the problem is not remedied at the first stage, the next step is implemented until either the problem is resolved or the employee is discharged.

The stages of progressive discipline generally include:
  • Verbal counseling
  • Written counseling
  • Second written counseling
  • Suspension/Decision-day
  • Termination
Progressive discipline is designed to resolve minor employment problems before they become major ones. Progressive discipline is not appropriate for serious infractions such as illegal or unethical conduct. Such conduct warrants immediate termination provided that in the past the employer terminated employees under similar circumstances.

Progressive discipline requires a lot of documentation. It must be administered consistently. Progressive discipline also requires supervisor training on how and when to administer the various stages. A representative of the employer must monitor the program to ensure that it is being applied uniformly among the departments.

The progressive discipline model has been criticized because some employers feel that it is too structured and eliminates the employer's flexibility in employment decisions. Failure to follow the sometimes rigid progressive discipline program has also resulted in liability for employers in disparate treatment cases. Employers with a progressive discipline program must monitor it closely and commit to following the various stages. If a progressive discipline is followed through all the stages, however, the employer has a much better defense when the employee brings a lawsuit challenging the discharge.


B. Suggestions for Informing Employee of Disciplinary Action

 Whether the employer has adopted a progressive disciplinary program or a less structured way of disciplining employees, the following suggestions should assist in the process:
  • Tell the employee the exact reason for which the employee is being disciplined
  • Give concrete examples of unacceptable conduct
  • Give constructive criticism
  • Set specific goals and expectations for improvement
  • Tell the employee what will happen if conduct or performance does not improve
  • Set definite time period for performance or conduct to improve
  • Follow-up to make sure expectations have been met in a timely manner

IV. DISCHARGE

Discharge decisions are also extremely difficult. After discharge, an employee is normally left with no source of income. Because of the emotions involved in a discharge decision, supervisors tend to let down their guard during the termination meeting. The current job market has prompted many disgruntled former employees to sue their former employers more often than in the past. For this reason, any mistakes in the discharge process subjects the employer to potential exposure for wrongful termination. Therefore, employers must be extremely cautious when making and implementing discharge decisions.

Discharge decisions are generally made for three main reasons:
  • Illegal or unethical conduct
  • Performance issues or unacceptable conduct
  • Reduction in force or job elimination
Discussed below are some of the different factors which should be reviewed for each of these three reasons.

Some common recommendations apply, however, for all three types of discharge:
  • Always require that at least two management employees are present when informing an employee of the decision to discharge
  • Avoid arguing with the employee and avoid unnecessary discussion. An employee may need to vent some anger. Let him vent; do not get defensive. Tell the employee that a final decision has been made
  • Be warned that the employee may be tape recording the meeting or subsequent phone conversations
  • Explain the reason for the discharge decision. Be honest. Never give the employee a false reason for the decision
  • Make sure the employee understands what the decision means
  • Inform the employee of the effective date of termination
  • Tell the employee of any salary continuation or other benefits, including job counseling or assistance with placement, if applicable
  • Only disclose information about termination decisions on a need-to-know basis. To do otherwise subjects the employer to potential liability for defamation
  • Consult with Human Resources, upper level management, or another supervisor prior to making discharge decisions
  • Pay all unpaid wages, accrued vacation, severance, and other benefits in a timely manner. If possible, pay these items at the time of termination
A. Termination for Illegal/Unethical Conduct

Employers need to thoroughly investigate allegations of illegal or unethical conduct prior to making a discharge decision. The investigation should reveal sufficient reliable evidence to conclude that the employee committed the infraction. If a written policy or handbook governs the conduct, it should be followed. The results of the investigation should be compared to prior similar conduct and similar action should be taken. The employers findings should be sufficiently documented in anticipation of a potential law suit.

Under certain circumstances, it may take an employer a short period of time to fully investigate. Employers may suspend the employee pending the investigation. If the investigation reveals sufficient evidence, then the employee should be told that the suspension has been changed to a termination decision. If the investigation does not reveal sufficient evidence, then the employee may be reinstated. Sometimes the investigation will reveal an infraction which is insufficient for termination but still warrants disciplinary action.


B. Performance Issues/Unacceptable Conduct

When discharging an employee based on performance issues or unacceptable conduct, always:
  • Review policy or handbook
  • Compare infraction to prior instances involving similar infractions
  • Review existing documentation in employee's personnel file. Make sure it is accurate and updated
  • Consult Human Resources, upper level management, or another supervisor for an objective, impartial second opinion
  • Determine whether disciplinary policy has been followed
C. Reduction in Force or Job Elimination

When an employer discharges an employee based on job elimination or a reduction in force, whether the employee elects to take an early retirement package or not, the employer should set specific factors for selection. The factors need to be disclosed to the employee. The factors also need to be applied uniformly and consistently. Prior to making any decision, however, the employer should review what impact the decision will have on employees over forty.

If an employer pays severance to a discharged employee, the employer should insist on a release of all claims from the employee. If the employee is over forty, the release needs to contain specific language and must meet additional requirement in order for it to be legally enforceable.