Discipline and Discharge

Discipline and Discharge

By Lori Cooper

All employers are faced with situations where an employee needs to be disciplined or have their employment terminated. This article will discuss how to avoid making some obvious mistakes when handling the discipline and termination processes.

Use a Thoughtful Process

In this litigious era, employers should expect that any discipline or termination could result in a lawsuit or a claim for damages. If the employer has not thoroughly planned the discipline or termination, which includes demonstrating that you attempted to work with the employee on their shortcomings and articulated a reason for the discipline or termination, you may be left without an adequate defense against a claim of discrimination or retaliation. An employer’s best defense to a claim of discrimination or retaliation is a well-documented, thoughtful, and legal basis for discipline or termination, one that is clearly expressed and explained to the employee.

Avoid Unfortunate Timing

Employers should avoid incidents of unfortunate timing, such as terminating or disciplining an employee after they return from OFLA-protected leave for an event that occurred prior to their leave.  Under state and federal law, timing alone is insufficient to prove a discriminatory motivation. However, prudent employers understand that incidents of unfortunate timing may raise an inference of discrimination. It is not always possible to avoid incidents of unfortunate timing, but it is usually possible to avoid delay. If an offense is sufficient grounds for discipline or termination, then employers should act promptly. Failure to do so can create a question in the mind of a judge or jury: if this offense was so bad, why did the employer wait six weeks to take action?

Make a Record

You have probably heard the saying “If it isn’t written down, it didn’t happen.” A written record of progressive discipline for offenses is particularly important in defending claims that the discipline or termination was in retaliation for taking protected leave, or violates the  ADA (among other reasons).  By its very nature, discipline or termination for “just cause” pursuant to a CBA requires documentation of progressive discipline, except in very limited circumstances. For public sector employers, employees who are represented by unions are, in most situations, required to receive progressive discipline before a termination can occur – this establishes a “just cause” basis for termination.

Give Due Process

Under due process principles, a public sector employee is entitled to “notice and a meaningful opportunity to be heard” before their employer can fire them, or before receiving discipline that has an economic consequence, like a suspension without pay.  Employees represented by a union must receive due process (also known as a “Loudermill” hearing).

Even non-represented employees might be entitled to receive due process because the employer’s policies require it, or because their employment contract specifies that due process must be provided.  In many cases, providing due process even to those employees who are not legally entitled to it can be helpful to an employer facing a potential claim from that employee.

Consult with Your Trusted Legal Counsel

There is no such thing as a “slam-dunk” discipline or termination.  In this era of litigation, every discipline or termination decision could be subject to a claim or a lawsuit.  Therefore, conferring with legal counsel about proposed discipline or termination before issuing notice of such to the employee is a wise use of funds and time.  The Local Government Law Group stands ready to assist you in the event that you need to discipline an employee or terminate their employment.