Business Law 101 / Employee Discipline

 

By Albert L. Kelley

 

During the 18th and 19th centuries, employers had complete discretion in disciplining their work crew and the discipline was harsh. As we came to the 1930’s, changes were taking place. The Wagner Act took away discriminatory discipline and through the use of labor arbitration many policies regarding employee discipline have been modified. Today, employees have certain protections. For instance, in general, most employees are considered to be employed at will. They can be fired at any time for any reason, or for no reason. However, the employee may file a wrongful discharge claim if the discharge is a violation of law, if there is an implied contract, or if discipline is in contravention to public policy.

 

There is an almost endless variety of possible work behaviors that call for discipline. When challenged, management’s discipline decisions have been reduced or eliminated in a majority of cases that are heard by arbitrators. This can be expensive for management as it often requires them to give back pay to the wrongfully disciplined employee. Also, once the employee is reinstated, they often perform substandard work.

 

What are the elements of discipline that will pass muster with the arbitrator? There must be clear and convincing evidence that an offense was committed by the employee; the discipline by management was appropriate for the offense; and the discipline is not arbitrary or discriminatory.

 

Management usually has the right to establish work rules for the business. These work rules must be clear, reasonable, consistently applied, and let the employees know what the consequences will be for failure to follow them. Yet situations arise that management has not thought of and therefore there are no set rules for them. How do you handle this? One way is to make some general policies that you can derive solutions from.

 

Many employers enforce a policy known as progressive discipline. This is where the punishment gets worse as the infractions increase. The first infraction may result in a verbal warning. Second may be a written reprimand. Third may be a suspension and fourth may result in termination. The benefit of a progressive discipline policy is that it give the employee more chances to save their job and lets them know that they need to watch their behavior. Even when progressive discipline is used, there are usually exceptions that allow for immediate termination for the most grievous violations.

 

Employees also have certain due process rights in disciplinary actions. What is due process? Due process means that there is a certain order that should be followed in all cases. It means that the employee’s rights will be respected and he or she will be treated as any other employee. The employee is entitled to be told in writing what the specific grievance is. They have a right to know in advance what the rules are. If there are time limits in their contract, management must follow them. If the employer violates the employee’s due process rights, the arbitrator may nullify the discipline, say that the action will be overturned if the employee shows prejudice, or issue some other penalty but not nullify the action. Usually, the employee will not be reinstated just because due process is not followed exactly.

 

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University. He is also the author of “Basics of Business Law” and “Basics of Florida’s Small Claims Court” (Absolutely Amazing e-Books). This article is being offered as a public service and is not intended to provide specific legal advice. If you have any questions about legal issues, you should confer with a licensed Florida attorney.

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