What's the Best Way to Discipline An Employee?

We’re speaking with Margie Mader-Clark, an expert on human resources issues, and the author of, “The Job Description Handbook,” from Nolo. Margie is currently working on a book on progressive discipline.

QUESTION: Margie, to the layperson, the term “progressive discipline” sounds like a very unpleasant experience, sort of like corporal punishment. What does the term mean, and why has this term gained in popularity among human resources experts?

MARGIE MADER-CLARK: Well, it’s funny; I’m not sure that it is popular. In fact, it seems to be fading in popularity in human resources. I myself don’t like the term, because of all the connotations that you described. We’re using terms now more like, “Get-well plans,” or “Performance improvement plans” that are really designed more towards keeping people on board. “Progressive discipline” sounds very negative and very “you’re on your way out.” Keep in mind, the spectrum of reasons that you would employ discipline is huge; it’s broad ranging. It ca be from simple performance issues from absenteeism or tardiness, all the way up to horrible things, like sexual harassment, and violence in the workplace. So, to try to capture a term that gets all of those I think is a difficult thing, and it’s one of the reasons why we went with “progressive discipline.” Most of the time what you’re really trying to do is correct performance issues. So, things like corrective action plans, things like performance improvement plans, are a better sounding terminology for that function of this. But it is what it is; it’s sort of, this is a process, it’s a step-by-step process that’s intended to change the direction of performance or behavior of an individual, so, that’s discipline, so if you think about it in those terms, it is a progressive discipline process.

QUESTION: Some people describe progressive discipline as a ladder. Why is that?

MARGIE MADER-CLARK: Yeah, if you think about the steps of progressive discipline, or one of these other types or names for the same thing, certainly the way that this book is set up, the goal is to correct behavior. So, these would get ever more intense as that behavior doesn’t correct, I guess is the way to think about that. So, some of the different steps, you would start with basic coaching – here’s what’s going wrong, here’s what impact it’s having, here’s why we need it to get better, let’s talk about how we might do that. From there, if it’s not improving, you would go to another step called a verbal warning, which is, “You need to do this and this and this, by this particular time.” This book advocates a collaborative process to make that happen, where you actually are involving the employee in coming up with the solution for the issues, and that goes through all the steps of this. From a verbal warning you’d go to a written warning that says, “Okay, now we’re getting serious. If this doesn’t happen by this particular time, with these particular measures of success, we may move on to the next step, which would be suspension or termination.” Suspension is used pretty rarely, and it’s used primarily when you need someone off the premises while you either do an investigation, or you need a situation to cool down, so the most logical next step after written warning is typically termination. Basically, you can think of it sort of almost like a “three strikes, you’re out” type of process. For most of the behavioral issues, you would cover most of the steps; for some issues, you’ll jump right to the top.

QUESTION: Not every company appreciates progressive discipline; some prefer to avoid the counseling and strategizing. Instead, they reprimand, suspend, or terminate. This seems pretty efficient – what are the disadvantages of good old-fashioned punishment of bad employees?

MARGIE MADER-CLARK: For some, again, for some issues there are no disadvantages, and that’s absolutely the action that you should take. For what I’ve seen in my career, the bulk of the issues that you would employ a plan like this for are performance-related. So, the disadvantage of jumping straight to a quick-trigger firing is that you have this enormous replacement cost and process that would then need to occur. You would have lost time of the person that you’ve just let go, you’d have lower productivity of the team on the whole, you’d have the cost per hire that would be involved in hiring a replacement, their orientation and assimilation time, and their time to productivity… when you think about that whole thing, some work has been done in the Silicon valley to try to net out what those costs are, and for the average-knowledge worker, those costs can total up almost $250,000, which is a pretty significant impact to the bottom line. So, when you think about it from a business standpoint, being able to turn around the performance of an existing employee negates all those costs, and gets your employee more productive in a much shorter time frame than it would take to actually replace them.

QUESTION: In progressive discipline, an employee reads a reprimand, and then must sign it. Why have the employee sign it, and what happens legally if the employee refuses to sign it?

MARGIE MADER-CLARK: Typically on a reprimand, the signature is just acknowledgment of receipt, or acknowledgment of understanding what the document says, so they don’t actually have to sign it. If they refuse to sign it, all you have to do, it’s no less valid, you just have to note the date and the time that the employee saw it and that you presented it to the employee and that you can verify that they actually read it. Once you’ve done that, you’ve taken care of that step of notification, and you’ve started them down the road of the discipline process, and you have your documentation in place as well.

QUESTION: Okay, an employee has done something bad, and the company wants to suspend the employee. Let’s say the employee has threatened someone, or arrived at work drunk, or harassed another employee. How long should a suspension be for, and how do you implement that? Is it suspension with pay? Does a manager have to consult human resources before suspending an employee?

MARGIE MADER-CLARK: I wish there were some hard and fast rules about this, because it would be much easier to apply suspension consistently if there were, but suspension is basically, and I think I mentioned this earlier, it basically happens in two different times: number one, there is clear and present threat of danger to your existing workforce, or to the employee themselves, and you just need to get them off the premises. The second time it happens is if you need to do an investigation into an issue, and you don’t necessarily know if that employee is actually guilty of whatever that issue is or not, and it buys you some time when that employee is not present that you can do that investigation. Those are the two basic times you would actually use a suspension. So, the question about, “Is it paid or not?” kind of goes with those answers. If it’s an investigation and you don’t have proof of guilt, you probably want to pay them for that time. Again, it’s not hard and fast; you don’t have to, there’s no law that says you have to pay them, but a good practice is to pay them with sort of the theory of being innocent until proven guilty. If it’s the other case, where you’re getting them off the premises because you’re worried or there’s been violence, or a threat of violence, or anything like that, you don’t have to pay them; you can suspend them without pay, and that’s just basically buying you time to get your paperwork together, and get it documented, and so forth, to move ahead with the termination. Typically, if you’re suspending them without pay, the next step is termination.

QUESTION: What happens if the company acts inconsistently? For example, the company suspends one person for a week for being drunk, but another person who’s drunk simply is given notice, or sent home for the day. What kinds of issues arise if progressive discipline is not provided with consistency?

MARGIE MADER-CLARK: This is sort of the bane of progressive discipline’s existence. This is the way you can get into the most trouble; if you’re not being blatantly discriminatory and so forth, that inconsistent application will cause you the most trouble, and the reason is, someone will come up with a purpose or a reason why you treated somebody differently than you treated someone else for the same sort of instance. That can be easily interpreted as discriminatory, or showing favoritism, or nepotism, or a variety of different reasons. All those reasons can open you, and your company, you personally and your company, up to potential legal exposure, and costs associated with that. So, a written progressive discipline process that’s not followed to the extent that it’s written down, in the order that it’s written down, would be considered inconsistent application of that process, and would allow legal exposure. So, you definitely want to, especially when situations are similar, treat them as much the same as possible. Now obviously, there’s some things that you’ll do differently based on the personalities of the people that you’re working with, but for the most part, the basic steps need to happen in the same order, and at about the same point in the cycle, from person to person, as these different issues occur.

QUESTION: Is there a way for the company to implement the discipline without the employee taking it personally?

MARGIE MADER-CLARK: I think it’s always tied together; I think the most successful progressive discipline is done when you’re taking into account how it will be received, and what actions you want the employee to take, and how you want them to participate and be involved, because I’ve always seen the higher the level of employee involvement in a get-well program, the more likely they are to actually get well. So, if you’re approaching a personality that you think is going to be shocked and surprised that you’re actually taking a disciplinary step with them, then you need to walk them very slowly through the step. Don’t eliminate the step at all, because that puts you in the same trouble as the last question, but walk slowly through the step, have your reasons together, have specific examples together, and get them to a point of understanding, if not accepting; don’t worry too much about accepting in the first step of the disciplinary process, but at least get them to understanding the issue. Then you can start to bring them into actually collaborating with you on how to fix the issue. So, I think it’s very important to adapt your delivery to the person’s personality, and not try to do that very quickly, or without thought, ahead of time.

QUESTION: A big component of progressive discipline is documentation; that is, getting information into the employee’s personnel file. Where can a manager get help as to the proper wording for the types of statements that should be included in a personnel file?

MARGIE MADER-CLARK: I think the main thing to remember here is, documentation of these things, you want to basically keep wrapped around the facts and event details, just enough to trigger your memory. So, dates and times, who was present, where did this meeting or incident take place, what was said and how was it received, and if you note kind of those what, where, when, how type of statements, that’s all the documentation that you need for the most part. As you move to written warnings and so forth, obviously you’ll have that piece of paper that says what that warning is, but documenting these coaching sessions, or the verbal warnings and so forth, it’s really a who, what, where, when, and how it was received type of documentation. There’s lots more detail on that in this book, and in Nolo’s other titles.

QUESTION: What other types of things should trigger a media termination, not progressive discipline? And, do you have to notify employees that these types of things are exempt from the progressive discipline procedures?

MARGIE MADER-CLARK: There’s certain things that are just considered zero-tolerance, and most policies will list those out in sort of a comma format, and they would include all the things that you would think were very obvious. So, any violence towards another employee, harassment, blatant discrimination, any felonious actions, anything that breaks the law… these sort of jump right to the top of the ladder, and are, you know, certainly possibilities for immediate termination.