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Should Employers Use Progressive Discipline?

Employment in California is presumed to be terminable “at will,” i.e., employees can be fired for any reason (unless it’s an illegal reason) without warning. See Lab C §2922. This often comes as a surprise to employees who expect to get notice before their employment is terminated. That some employers adopt progressive disciplinary policies may make it even more confusing.

A progressive disciplinary policy is based on incremental levels of discipline, such as the following:

  • Discipline begins with an oral warning for the first infraction of a work rule or other misconduct;
  • If the misconduct persists, it’s followed by one or more written warnings; and
  • It culminates in suspension (optional) or termination for subsequent infractions.

Progressive discipline is typically used to correct less serious forms of performance deficiencies or misconduct (e.g., absenteeism, performance deficiencies, tardiness, abusive language, horseplay, sleeping or loafing on the job, personal use of company equipment, and other less severe forms of performance deficiencies or misconduct). Employers shouldn’t use progressive discipline in instances of severe misconduct (e.g., when the employee has engaged in physical assault, theft, falsification of work records such as a résumé or time records, willful damage to property, or divulging company trade secrets or other confidential information).

Strict progressive discipline policies encourage “fairness”—it gives employees warning and notice and keeps discipline consistent. This makes it very appealing to employees, and it can also create jury appeal for employers.

But many lawyers actually suggest avoiding a rigid progressive discipline policy because (1) it’s inconsistent with a truly “at-will” employment relationship, and (2) it creates too many litigation risks. Having a progressive discipline policy gives a terminated employee grounds for arguing that there was an implied-in-fact agreement that terminations could only be for good cause, which makes it harder for an employer to win on summary judgment.

In essence, the employer that adopts such a policy has established a standard for its own conduct. As a result, any failure to follow the policy could be viewed by a jury as improper or in bad faith. And the more detailed a policy is, the greater the risk that a mistake will be made in the course of dealing with a disciplinary problem.

For those employers who still want to adopt a progressive discipline policy, here are some suggestions:

  • Include an at-will disclaimer at the end of the progressive discipline policy that permits the employer to skip any step in the discipline process.
  • Instead of making the policy widely available, put the policy in a management-level procedures manual, because this prevents the claim that the employee detrimentally relied on the policy while allowing the employer to legitimately claim that the procedures were instituted for the employer’s benefit only.
  • Require supervisors to document each step of the process and discuss each disciplinary step with the employee to be sure that the employee understands the basis for the discipline and the consequences of subsequent infractions.

Get guidance on all aspects of discipline and terminations in CEB’s Advising California Employers and Employees, chap 17. On progressive discipline required for city employees, check out CEB’s The California Municipal Law Handbook §§4.279-4.284.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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