Founder and Managing Partner
Attorney of Counsel
Progressive discipline policies are preferred by many employers as a method to ensure fair and consistent administration of disciplinary action and more predictability for employees. However, employment plaintiffs love to use these policies against employers to deflect attention from their bogus claims onto an employer’s supposed shoddy practices. Here are a few tips to limit the extent an employment plaintiff can try to use these progressive discipline policies against you:
- Maintain flexibility through the policy language to allow for bypassing steps or specific procedures. Employers should still assess each disciplinary situation on its own facts and have the flexibility to take disciplinary action that is appropriate in each case.
- Do not allow the policy to undermine at-will employment. In the recent unpublished case Oakes v. Barnes and Noble College Booksellers LLC, the plaintiff (a former manager) alleged that she had been instructed to use the Company’s progressive discipline policy in every circumstance when seeking to terminate an employee. Even though that Company’s progressive discipline policy stated that the Company could skip steps in the progressive discipline process, the plaintiff alleged that the Company’s actual practice was contrary to this and that this adherence to the process in all circumstances undermined the Company’s employment at-will policy. The trial court granted summary judgment in the Company’s favor. But the Court of Appeal reversed this decision, allowing the issue to go to trial. Although, it will be ultimately determined at trial, the plaintiff’s allegations were sufficient to survive summary judgment. This serves as a warning to employers to exercise caution as to how they characterize and follow progressive discipline policies (including instructions to management on how to administer it) so as not to undermine at-will employment.
- Periodically review the policy and its effectiveness to the organization, and revise as necessary. If the employer determines that the policy creates unwanted results or is not being consistently followed, it should be reviewed to determine how it can better fit and serve the employer’s purposes. Employers may choose to conduct periodic audits to compare disciplinary actions taken among their employee populations (to include comparisons between management and non-management employees and employees in protected categories) to ensure that these policies are being fairly and consistently followed. Remember, it is often worse to have a policy that is not followed, than no policy at all!
Although progressive discipline as a general practice is sound and can prevent employers from engaging in unlawful employment practices, a progressive discipline policy should not be an excuse to avoid individual assessment of disciplinary actions, nor should it be applied inflexibly or inconsistently. Employers may wish to consult with employment counsel regarding proper drafting and implementation of such policies.