Employee Discipline – Importance of Consistency*

Following up on last week’s Topic here discussing the importance of conducting a proper investigation to verify the factual basis of an employee’s discipline, the concluding step is to make the right disciplinary decision.? There must be a determination about whether or not the conduct occurred and, if so, what should be the consequence be, if any, for the employee.? As discussed more fully in this week’s Topic, consistency in the implementation of employee discipline is key.?

After all the interviews have been conducted and the evidence gathered, the investigator must make a determination as to the merits of the issue and possible discipline. The investigator should look into the details of the statements, evaluate credibility and consider corroborating and exculpatory evidence. The investigator will formulate conclusions that should be carefully documented. Such conclusions should be reported to the decision makers so that prompt action can be taken.

It is paramount that any action taken in response to a complaint be consistent. Consistency in imposing disciplinary measures for the same or similar types of infractions is critical. If the company does not treat like cases in a like fashion, the employee adversely affected will have the ability to argue that he or she was treated in an unlawful manner, or based upon a protected classification.? As a result, care must be taken to evaluate how the employer dealt with similar situations in the past when issuing discipline.?

The need for consistency does not prohibit some variation in discipline according to the circumstances of the particular case; however, when a manager decides to grant leniency to one employee after terminating another employee for the same or similar offense, the basis for the different treatment must be carefully evaluated, weighed and documented. If the decision-maker is aware of a similar situation where another employee was treated less harshly, the decision-maker would be prudent to set forth in detail the precise basis for the differential treatment (e.g., the employee terminated had 10 write ups more than the employee not terminated, etc.).

Once the decision is made, it should immediately be communicated to the complainant so that he or she is prepared for the action to be taken. The appropriate remedial action, of course, depends on the seriousness of the allegations and circumstances. Also, once a decision is reached, the employer should only inform those individuals who have a need to know.?

The employer should prepare a report or document the investigation, including all investigative materials such as witness statements, documents reviewed and written statements or affidavits submitted, all of which should be preserved and, in the context of a discipline or termination situation, placed in the employee’s personnel file. This step is important because the employer may be required to produce or use it in the future.? Similarly, in some states like Illinois, employees are generally entitled to receive copies of any disciplinary notice and the non-privileged documentation supporting the discipline.

Next week, we will start series of Topics discussing best practices employers can take when an employee is terminated and/or resigns.?? ???????

* This is one of a series of weekly articles containing helpful tips and “best practices” for employers to keep in mind when managing their workforce.? These articles are partially adapted from my book, Employment Law Toolkit for Employers.? If you would like a copy of my book, please reach out to me at 312-876-6676 or [email protected] . Nothing contained in this article shall be construed as legal advice and this article does not create an attorney-client relationship between Saul Ewing LLP and any reader.?