Progressive Discipline and At Will

2979896

I thought that Progressive Discipline was in direct conflict with At Will policy. What do others think?????


Michelle M. O'Neil

HR in CA

In California, yes it is in conflict. According to every wage and hour seminar I have attended in the past 10 years.

clarkbar

I'm curious. Please explain.

2979896

Michelle M. O'Neil

There have been court cases where employers have experienced problems with the verbiage in their Employee Handbook. For instance, the Company will have a paragraph talking about At Will (I assume you know what this is) but will then state later in the Handbook that they have a Progressive Discipline policy. Given that At Will says you can hire and fire anyone at any time without a reason, when you have a Progressive Discipline policy, you create the concept of "for cause." This is in direct conflict with At Will and employees have taken their employers to court due to the above reasons. If you wish to discuss this and I can explain any additional information to you, please call me. This is a complex issue and, sometimes, talking about the issue over the phone provides a better stream of communication. My number is (937) 254-4441 (ext. 128). Take care. Michelle

Margaret Morford

I'll give this one a try. At Will means you can fire employees for a good reason, a bad reason or no reason at all. However, employees that are in a protected class or participating in protected activity will argue that they got fire because of that. The employer then has to prove that's not true. What can gut your case as an employer is if you have an iron clad Progressive Discipline Policy. For example, employees get three warnings before termination. Employees will then beat the employer up in court saying that they never received the three warnings. Some make the arguement that the Progressive Discipline Policy establishes a contract with the employee. Some will argue that they relied on that promise of three warnings. And some will say it's just further evidence of discrimination since they did not get the three warnings other employees got.

The problem for employers is that our sense of fairness says we have to give employees some idea of where they stand and at what point they could get fired. One way you can deal with this as an employer without eliminating At Will status is to put in a Progressive Discipline Policy that allows the employer to skip any, and all, steps if the behavior is serious enough. There should be some oversight (I recommend review by HR to ensure equity and a lack of discrimination) if the supervisor wishes to skip steps.

I have a Corrective Action Policy that lets you do all of this as well as accelerate the process for probationary employees. I'll be glad to send it to you with the Form that goes along with it. E-mail me if you want it.

Hope that helps.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

mwild31

Margaret's right, I had responded to another post and I had to edit my comments because it conflicted with Progressive Discipline and At Will. I love At-Will, it's a very effective tool for management, at the same time, when we don't 'warn' the employee about their performance and instead go straight to termination - it kills us with Unemployment. That being said, in my policies I have the At-Will policy in the beginning and again (overkill I know) at the beginning of the discipline section. In addition to the discipline policy I have, I also have an extensive misconduct - resulting in immediate dismissals policy as well. In this reply it might sound confusing, but that's the downside to message boards I guess.

My discipline policy is:

"All employees are expected to meet Company Name standards of work performance. Work performance encompasses many factors, including attendance, punctuality, personal conduct, job proficiency and general compliance with the Company’s policies, Statement of Purpose and procedures.

If an employee does not meet these standards, the Company may, under appropriate circumstances and at their sole discretion, take corrective action, other than immediate dismissal. The intent of corrective action is to formally document problems while providing the employee with a reasonable time within which to improve performance. The process is designed to encourage development by providing employees with guidance in areas that need improvement such as poor work performance, attendance problems, personal conduct, general compliance with the Company’s policies and procedures and/or other disciplinary problems.

Employees who have had formal written warnings are not eligible for salary increases, promotions or transfers during the warning period."

HR in CA

I agree 100%. The trouble comes in when different supervisors want to treat the same violation differently. But again that happens even with at will. At will certainly puts the employee on notice that you can be terminated without going through progressive discpline. Although here in the golden state you really have to be cautious even with at will. Hungry lawyers everywhere!