Employee Conduct and Discipline Policy
Author: Jason Habinsky, Haynes & Boone
When to Use This Policy
Before beginning work, employees should know what conduct is expected at work and the employer's disciplinary policy. If there is not an established policy, employees can argue that the employer failed to provide notice of prohibited conduct and employees were not informed of the possibility of disciplinary proceedings. The policy should also reiterate the employer's position that all employment is at-will.
The employee conduct and discipline policy should be communicated to employees before beginning employment, and the employer should make sure that employees sign and acknowledge that they have received a copy of the policy and understand it.
Below is a model policy that should be further tailored to fit the employer's specific needs
Employee Conduct and Discipline Policy
- Performance Evaluations - Supervisors and employees are strongly encouraged to discuss job performance and goals on an informal, daily basis. Additional, formal performance evaluations are conducted to provide both supervisors and employees the opportunity to discuss job tasks, identify and correct weaknesses, encourage and recognize strengths, and discuss positive, purposeful approaches for meeting goals. Performance evaluations are scheduled approximately every twelve (12) months, generally either coinciding with the anniversary of the employee's original date of hire or at a time set by the employer for annual reviews of all employees.
- Termination of Employment - [Enter Employer Name] works hard to treat employees fairly. [Enter Employer Name] retains the right, however, to enlarge, reduce or make changes in, or terminations from, the work force. Employment with [Enter Employer Name] is at-will and either [Enter Employer Name] or the employee may end the relationship at their own discretion.
- Rules of Conduct - To assure safety and security and provide the best possible work environment, [Enter Employer Name] expects employees to follow rules of conduct that-will protect everyone's interests and safety. It is not possible to list all forms of behavior that are considered unacceptable in the workplace, but the following are examples of infractions that may result in disciplinary action, including suspension, demotion or termination of employment:
- Falsification of employment records, employment information or other records;
- Recording the work time of another employee, allowing any other employee to record the employee's work time, or allowing falsification of any time card, whether yours or another employee's;
- Theft or the deliberate or careless damage of any company property or the property of any employee or client;
- Use of company equipment, time, materials or facilities for personal reasons without advanced permission from management;
- Possessing, distributing, selling, transferring or using or being under the influence of alcohol or illegal drugs in the workplace;
- Provoking a physical fight or engaging in physical fighting during working hours or on premises owned or occupied by the [Enter Employer Name]
- Carrying firearms, weapons or dangerous substances at any time, on premises owned or occupied by [Enter Employer Name], unless state law provides otherwise;
- Using abusive or threatening language at any time during working hours or while on premises owned or occupied by [Enter Employer Name];
- Absence of [insert number] consecutive scheduled workdays without prior notice to [Enter Employer Name]
- Failing to obtain permission to leave work for any reason during normal working hours;
- Failing to observe working schedules, including meal and rest breaks;
- Abusing or misusing paid sick leave;
- Failing to provide a certificate from a health care provider when requested or required to do so in accordance with applicable law;
- Working overtime without authorization or refusing to work assigned hours;
- Violating any safety, health or security policy, rule or procedure of the Company; and
- Committing a fraudulent act.
- Discipline - [Enter Employer Name] may take disciplinary action, up to and including termination, against any employee for failing, in the employer's sole discretion, to adhere to certain standards of behavior. Ignorance of work rules is not an acceptable excuse for a violation of the rules of conduct, it is each employee's responsibility to learn and abide by these rules. Although employment may be terminated at-will by either the employee or [Enter Employer Name] at any time, without following any formal system of discipline or warning, [Enter Employer Name] may exercise discretion to utilize forms of discipline that are less severe than termination. Disciplinary action can take any one of the following forms:
- Verbal warning;
- Written warning;
- Suspension; and
- This statement of prohibited conduct does not alter or limit the policy of at-will employment. Either the employee or [Enter Employer Name] may terminate the employment relationship at any time for any reason, with or without cause, and with or without notice. Only the President/Owner of [Enter Employer Name] or his or her authorized representative has the authority to enter into an employment agreement that alters the at-will employment relationship, and any such agreement must be in writing and signed by the President/Owner of [Enter Employer Name] or his or her authorized representative.
- Resignation - Employees who intend to resign are requested to do so in writing with two weeks of advance notice. Employees must return all of the property belonging to [Enter Employer Name] immediately upon resignation.
- NLRA Activity - When applicable protected concerted activity covered by the National Labor Relation Act (NLRA) or the particular collective bargaining agreement is not prohibited by this policy. This policy in no way prohibits employee communications that are protected under applicable state and federal laws, including but not limited to any activity that is protected under Section 7 of the NLRA which includes the right of employees to speak with others about their terms and conditions of employment.
- [The employee should then have to sign a clause that states:"By signing this, I acknowledge receipt of the Handbook and understand that it is my responsibility to read and comply with the policies contained in this Handbook and any revisions made to it by the employer. I further acknowledge that this Handbook is for informational purposes only and does not constitute a contract of employment for any specific duration. Accordingly, either [Enter Employer Name] or I can terminate my employment relationship at-will, with or without cause, at any time, so long as there is no violation of applicable federal or state law. If I have any questions about the information contained in this Handbook, I will discuss them with my supervisor and/or HR.]
This is one policy that should be tailored specifically to the needs of the particular employer. For example, depending on the nature of the employment, the employer may require that employees provide four weeks of notice before leaving, or the employees may not need to provide more than a couple of days.
This policy should be used to identify serious violations of company policy. Such policies are likely to become relevant (and may be a valuable part of a defense) in cases involving challenges to terminations and other employment actions.
It is best practice to place this policy within the employee handbook so as to communicate the policy to all employees properly. The employer should make it the responsibility of each supervisor to see that this policy has been distributed to all employees and that each employee has signed an acknowledgment form. All supervisors and employees should receive training on workplace expectations, and supervisors should receive specific training on how to enforce company policy in a manner that is fair and consistent and involves HR if appropriate.
Progressive discipline policies are recommended. When providing an employee with an oral or written warning, the employer may also want to inform the employee of the specific work performance deficiency and provide recommendations for improvement. Progressive discipline ensures that the employee has a chance to correct the problem and take steps toward improvement.
Further, it is critical for the employer and supervisors to document all disciplinary actions taken and maintain a proper record in the event of a lawsuit. Any individuals involved in a proceeding regarding discipline or termination should keep copious notes and document in writing exactly what happened. Supervisors should be instructed to take progressively more serious action if there are repeated occurrences of the misconduct.
According to the report released by the General Counsel of the National Labor Relations Board in March 2015 on employer rule cases, a work rule prohibiting employees from engaging in protected concerted activity or one that can be reasonably construed as attempting to prohibit protected concerted activity may be found unlawful. Therefore, an employer should proceed with caution when providing a list of prohibited conduct so as to not infringe upon employee rights under Section 7 of the National Labor Relations Act. Complying with standards of conduct should not prevent an employee from raising complaints or concerns about, for example, wages or discussing those concerns with co-workers. The current NLRB has found general prohibitions against discourteous or disrespectful conduct to be unlawful because they could be interpreted as prohibiting potentially disruptive complaints about wages and other terms and conditions of employment. An employer should make every effort to consult legal counsel with questions about what employee conduct may and may not be prohibited. If an employer works with union employees, the collective bargaining agreement may also dictate which behaviors are permitted and not permitted.
An employer should also be mindful that prohibitions against carrying firearms or any other dangerous weapons can vary by state and even by municipality. In states that specifically give the employee the right to maintain a lawfully possessed firearm in a locked vehicle in the employer's parking lot, employees should be permitted to maintain a firearm in their own locked vehicle in compliance with the law. Under those circumstances, employees can still be prohibited from removing the firearm from their vehicle or carrying it on their person or into a building. An employer should check state and local laws concerning prohibitions against carrying firearms and other dangerous weapons.
It is important to preserve employer discretion and flexibility in any policy regarding employee conduct and discipline. Some employers may prefer to identify steps in a progressive discipline system. This means an employer will generally use a system of increasingly severe steps when an employee does not correct performance deficiencies after being given an opportunity to do so. However, any policy regarding misconduct and/or discipline must be drafted in a manner that allows the employer to respond appropriately and effectively under all circumstances. Therefore, it is important to reserve the right to combine, skip or add steps in any disciplinary system and to retain the employer's right and discretion to terminate immediately.
Although an employer should retain discretion to respond appropriately as circumstances demand, it is also important to strive to be generally fair and consistent when disciplining employees for not adhering to the rules of conduct. The policy should be applied uniformly, meaning that employers should not target specific employees and penalties should be applied in an even-handed fashion. The failure to apply this policy uniformly can make employers vulnerable to lawsuits and claims that supervisors or managers displayed favoritism.
Discipline policies have sometimes given rise to claims of implied or express contractual rights, such as the right to be terminated for cause only or the right to proceed through various steps of a progressive discipline system prior to termination. Therefore, it is important to include language preserving the at-will nature of the employment relationship.
However, in implementing any at-will policy, it is important to carve out a provision for employees' at-will status in order to comply with the NLRA and the interpretation of the NLRA by the National Labor Relations Board (NLRB). The NLRB has determined that at-will language in a policy mat violate the NLRA if it can be reasonably interpreted to restrict employees from engaging in protected concerted activity and collective action to change, alter or amend their at-will status or to require employees to agree that their employment relationship cannot be changed in any way. On the contrary, language prohibiting the employer's representatives from entering into any other emplyoemtn agreements contracdicting an employee's at-will status while explicitly recongizne the right of employees to engage in collective activity to modify their at-will status have been found lawful.