An article written by Employment Law Partner James F. Devine, Esq. discussing the challenges of labor and employee regulations that includes the pursuit of employment rights vs. employers for wrongful discharge.

A podcast discussing the Discipline and Discharge policy features Employment Law Partners Dan Lieberman and Ryan Murphy.

PODCAST – Discipline and Discharge Policy (Dan Lieberman and Ryan Murphy).

Introduction

As labor and employment regulations continue to evolve, more employees pursue individual employment rights litigation against employers for wrongful discharge at both the state and federal levels.  Employers confront potential exposure to claims ranging from discrimination and retaliation to wage and hour and unfair labor practices.  Moreover, in many instances, employees enjoy protections under both federal and state statute allowing them to bring suit in one or both jurisdictions and conform their claim or grievance to the venue that best suits their cause and recovery of damages.  A comprehensive and precise discipline and discharge policy reduces an employer’s exposure to claims by ensuring compliance with federal and state laws, placing employees on notice of conduct that could lead to corrective action and/or discharge, ensuring that members of management are consistently and uniformly implementing discipline procedures, and providing employers with the opportunity to demonstrate to employees that they intend to respect the rights of employees and respond to disciplinary concerns in a timely and appropriate manner.

The Law

Most jurisdictions embrace the doctrine of at-will employment - either party may terminate the employment relationship at any time for any reason.  As such, employers are authorized to discipline and discharge employees so long as employers uniformly apply discipline and discharge policies and procedures and do not act with discriminatory intent nor disparate impact.

Under the at-will doctrine, employers are generally not required to identify any reasons for an employee’s discharge.  However, if a discharged employee is a member of a protected class (i.e. age, race, color, national origin, disability, religion, gender, etc.) then discrimination may be suspected or inferred.  More importantly, employers that adopt but fail to uniformly apply discipline and discharge policies and procedures create greater exposure to liability.

To reduce exposure to individual employment claims, employers are encouraged to review current discipline and discharge policies to ensure full compliance with state and federal laws and regulation, as well as equitable application to the legitimate business needs of the organization.  Employers should make certain employees have ready access to posted policies and understand the ramifications for violation.  Employers should also routinely educate every level of the employment body – employees, managers and executive management - in all facets of the policy and protocol for application.

Policy and Workplace Culture

I.        Description of the Policy

 An effective Discipline and Discharge Policy has several key components:

• Written Policy:  The policy should be written and made available to employees at all times to ensure that employees are on notice of conduct that may result in the imposition of penalties or discharge.
• Provisions:  Each provision should address a legitimate and recognizable business concern.
• Language:

1. Language should be broad and non-exclusive and should incorporate the most common forms of misconduct, such as poor job performance, tardiness/absence, insubordination, harassment, etc.;
2. A broad, non-exclusive list of penalties that may be imposed against an employee for misconduct – ensuring that the disciplinary measure is appropriate for the infraction;
3. A disclaimer explicitly stating that the employer reserves the right to discipline or discharge an employee for conduct not identified in the policy; and
4. A disclaimer explicitly stating that management reserves the right and discretion to skip one or more of the progressive steps as circumstance dictate.

• Procedure: The policy should outline a multi-tiered process of incremental discipline.  It can provide for advancement of steps up to and including termination for egregious acts.
• Investigation: The policy should outline the guidelines for a proper, objective investigation:

1. The investigation will not be based on a presumption of guilt; and
2. The scope and duration of the investigation will be based on the nature of the facts and circumstances surrounding the potential for disciplinary action.

II.        Workplace Culture

The uniform application of an effective policy enables employers to establish standards that align with the entity’s mission and values.  Furthermore, it promotes healthy employment relationships since it demonstrates the employer’s respect of employee rights and intent to act in good faith.

Discriminatory practices can occur at any level of employment.  When formulating discipline and discharge policies, employers need to thoroughly evaluate and consider factors such as the size of the entity, whether there is a legitimate and recognizable purpose for the policy or procedure, whether the proposed policy or procedure violates employee rights under other laws and regulations, and determine whether the organization is capable of abiding by the policy or procedure and whether it truly intends to abide by the policy or procedure.

Employers must consider how a proposed policy aligns with entity values and mission, the appropriateness of the policy for both the current and future employee base, and whether the policy protects a legitimate business interest while valuing and respecting an individual’s employment rights.

Claims, Damages, and Impact

Depending upon the nature of the claim, an employee may have a valid cause of action against an employer in either state or federal court.  The litigation may expose employers to legal fees and potential judgments in the form of back pay, front wages, and compensatory or punitive damages.  Back pay is the calculation of wages that would have been earned from the date of alleged separation through verdict/settlement while front pay represents a projection of wages the employee could have earned from the date of the verdict through the course of their perceived occupational life.  By way of example, a 44-year-old employee could have a projected earning capacity through the age of 62 yielding a calculation for damages of his annual earning capacity with the defendant employer multiplied by 18 years.  Punitive damages are awarded in addition to actual damages in certain circumstances.  Punitive damages are considered punishment and are typically awarded at the court's discretion when the employer's behavior is found to be especially harmful.  Moreover, employers may face soft costs such as reallocation of valuable management resources and decreased employee morale, which can have a negative impact on productivity.

Analysis and Conclusion

A comprehensive and precise discipline and discharge policy provides employers with the opportunity to set a standard that aligns with the values and mission of the entity. Moreover, this policy protects legitimate business interests while embracing and respecting an individual’s employment rights, which in turn promotes healthy and productive employment relationships.

If you have any questions about this or any related policies or are in need of assistance in updating your Employee Handbook, please contact one of the attorneys in our Employment Law Group at EmploymentLaw@c-wlaw.com or 1-888-488-2638.

DISCLAIMER

The information in this article is provided for general informational purposes only and may not reflect the current law in your jurisdiction.  By reading this article, you understand that there is no attorney-client relationship between you and Cipriani & Werner, P.C. or any of our attorneys.  No information contained in this article should be construed as legal advice from Cipriani & Werner, P.C. or the individual authors.