Progressive Discipline /
Adverse Employment
Action

Disciplinary action is the process of addressing and/or correcting an individual’s substandard performance or behavior in the workplace.
 

The impact of these issues is not limited to the poor performing employee; instead, it often has a broader impact by negatively affecting the entire work group.  As such, addressing these issues is critical to maintain a productive, respectful work environment and ensure team objectives can be achieved.  

​

• An adverse employment action signifies a negative change in an employee's terms of employment. This can include but is not limited to: terminations, layoffs, demotions, reductions in salary or benefits, the failure or refusal to promote, or rescinding a job offer.

​

• Progressive discipline is a structured approach to handling employee conduct or performance issues that do not meet established standards or policies. It involves a series of graduated steps, each with increasing severity, to communicate deficiencies and outline the steps necessary for an employee to achieve acceptable performance. 

​

PROGRESSIVE DISCIPLINE PROCESS

 

A structured disciplinary process is critical for addressing workplace issues in a fair and consistent manner while protecting the organization from potential legal challenges. It underscores the importance of open communication and documenting each step.

​

The progressive discipline process typically consists of the following steps:

 

VERBAL WARNING - COUNSELING  

This is the initial step when an infraction occurs for the first time. It involves a verbal discussion with the employee to address the issue and set clear expectations for future conduct. Importantly, this interaction must be documented and saved by the manager. Documentation serves to protect the company as it demonstrates the performance or behavioral deficiency, the actions the company took to address it, including communications with the employee, and when it occurred.  

​

VERBAL WARNING 

If the issue persists or if a more serious offense occurs, a formal verbal warning may be issued. This warning should clearly communicate the required correction and inform the employee that failure to do so may result in further disciplinary action. Documentation remains critical - the manager must document this discussion, including when it occurred and what was discussed.

​

WRITTEN WARNING 

This step follows an unsuccessful verbal warning or if new problems arise. The warning must contain a detailed account of what occurred, examples of performance or behavioral deficiencies, and corrective actions required. It often includes an improvement plan with a specific timeframe tied to it. The employee and the manager usually sign this warning, and a copy is placed in the employee's personnel file.

​

SECOND WRITTEN WARNING (in some cases)

Depending on the circumstances, a second written warning may be issued or the organization may proceed directly to the termination step.

​

TERMINATION  

Termination is the final step in progressive discipline, when the previous steps have failed to result in sustained improvement of performance or behavioral deficiencies. Thorough documentation of the disciplinary process is essential to protect the organization from potential wrongful termination claims.

 

In summary, a structured disciplinary process, such as progressive discipline, is critical for addressing workplace issues in a fair and consistent manner while protecting the organization from potential legal exposure. It underscores the importance of documentation and open communication throughout the process.

​

INVESTIGATIONS

Workplace investigations are a crucial component of maintaining a legally complaint work environment. They serve to mitigate organizational risk, address employee complaints, and ensure employees can count on a fair, respectful workplace. These investigations are often conducted by HR professionals, legal counsel, or third-party investigators.

​

Conducting a fair, objective HR investigation, requires a standardized process that includes defined steps. Many organizations choose to investigate every complaint they receive; however, a company is legally obligated to investigate harassment, discrimination, retaliation, and safety complaints which are governed by  federal law:
 

• The Americans with Disabilities Act (ADA)

• The Age Discrimination in Employment Act (ADEA)

• The Occupational Safety and Health Act (OSHA)

• Title VII of the Civil Rights Act of 1964 (Title VII)

• State and local nondiscrimination laws

It is advisable to discuss every complaint, even those not legally mandated, with legal counsel to ensure proper handling.

​

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC) CHARGES 

An Equal Employment Opportunity Commission (EEOC) position statement is an employer’s response to an EEOC charge filed by an employee or former employee. 

​

RESPONDING WITH AN EFFECTIVE POSITION STATEMENT 

​

Responding effectively to EEOC charges is critical to protect your organization's interests and navigate potential legal proceedings.  Here are some key points:
 

• Identify the deadline for your response, as it cannot be submitted beyond that date.

• Carefully analyze the charge, review applicable company policies, the employee's personnel file for relevant information.

• Craft a clear, complete, and concise position statement with supporting evidence, including employee warnings, witness statements, and any other relevant documentation.

• Respond directly to each claim made against your company and provide your version of the facts.

• Recognize that EEOC charges may lead to litigation, so your response must be thorough and truthful.

• Consider seeking legal counsel to review and edit your position statement before submission to the EEOC.