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Progressive Discipline & Employment at Will

We have reviewed many Employee Handbooks over the past seven years. Some were prepared by Employment Attorneys, some HR Consultants and some by Publishing Houses who distribute 'Standard' Human Resources forms and documents. Common changes we made included; removing Progressive Discipline Policies, changing 'Annual Performance Reviews', removing references to Laws which do not apply based on company size (FMLA does not apply to employers with less than fifty employees), or location and finally, the addition of sections on Confidentiality of Information, Non Competition and Expectations of Privacy in the workplace.

Employers should not have a Progressive Discipline policy because it may compromise the employment at will doctrine. Under the employment at will doctrine, the employer and the employee are free to terminate the employment relationship at any time, with or without notice or reason. Progressive discipline may create a reasonable expectation that a specific procedure will be followed and that a reasonable cause for termination is required. This is not something that we want to encourage.

Unfortunately, Juries (who are generally ignorant of Employment Law) want to see that an employee was terminated only after being given adequate feedback on the performance deficiencies and wherever possible, after a second chance has been given.

Sounds like progressive discipline!

The way to satisfy the two seemingly conflicting requirements is to introduce a Corrective Action Process; where corrective action may be issued based on the particular circumstance of the incident. This corrective action will not follow the standard of progressive discipline (verbal, written, suspension and discharge) but will be based on the seriousness of the incident and also the history of the employee.

Corrective Action Steps

All corrective action needs to be documented and issued in writing to the employee concerned. There isn't a particular format for the documentation, but it is wise to do the following:

1. Describe the behavior, which is unsatisfactory.

2. Specify that any recurrence of this or other breach of company policies will lead to further corrective action or termination.

Where possible, get the employee to acknowledge that he/she has received the document. If the employee refuses to acknowledge the corrective action notice, mark the document 'Refused to Sign' and have the Manager sign and date the notice.

As with many matters relating to Employment Law, the words you use and the process you follow, has a significant impact on the outcome and the cost of any subsequent defense.