Overview: Employee discipline can improve communication with employees and foster positive outcomes - but only if used effectively. An employee's professional development may be aided by any number of measures, including targeted employee training and development or a referral to counseling. However, disciplinary action should also be used to ensure compliance with work rules and to promote workplace safety. In addition, employee discipline is a natural next step if an employee has not complied with a performance improvement plan (PIP) or action plan.
Although progressive discipline may be adequate to address many situations, at times immediate suspension or termination must be used. Employers need the proper tools to tackle commonplace workplace discipline situations, such as poor attendance, substance abuse and workplace theft. These tools include a variety of resources to aid in conducting discipline successfully, including internal policies and procedures and customized warnings.
Trends: States continue to enact legislation enlarging employee protections regarding an array of activities, ranging from smoking to voting to weapons possession. In addition, employees continue to make external agency complaints or file court claims under statutes with antiretaliation or whistleblower protections, such as federal and state False Claims Acts. Depending on state law, employers may be restricted from taking a number of actions during a disciplinary investigation, e.g., employee drug or polygraph testing. In other instances, an employer's failure to adequately discipline an employee or to document the results of a disciplinary investigation may pose greater liability problems, such as in the case of an external agency probe or an employment discrimination lawsuit.
Author: Marta Moakley, JD, Legal Editor
Updated to include forthcoming retaliation protections under the Alameda minimum wage ordinance.
Updated to reflect retaliation protections under the state paid sick leave law and to remove the preempted local paid sick leave laws, effective October 29, 2018.
Updated to reflect forthcoming law regarding prohibition on confidentiality provisions in settlement agreements; and forthcoming FEHA amendments regarding attorneys’ fees.
Updated to include retaliation protections in the Disclosing Sexual Harassment in the Workplace Act of 2018, effective October 1, 2018.
Updated to reflect retaliation protections under the statewide smoking ban, effective October 1, 2018.
Updated to reflect retaliation protections in the forthcoming state paid sick leave law.
Updated to reflect amendments to the Military Code of Alaska, effective September 21, 2018.
Updated to include retaliation protections under the forthcoming San Antonio paid sick leave law.
HR and legal considerations regarding fair and consistent employee discipline. Advice on disciplining with effective results, no discrimination.