Discipline in the Workplace

Disciplining employees is often not something supervisors like to do, but it is important to have a fair and appropriate discipline process in the workplace.

One of the most important roles of a supervisor is to maintain discipline in the workplace, which can also be one of the most difficult.

Most supervisors did not sign on to be disciplinarians. In my experience, supervisors do not correct employee behavior too often, but rather too infrequently, as well as too late. Failure to discipline employees in a timely manner is, in the long run, not to the benefit of the employees because it sends the wrong message about an employees conduct. 

Employees in the workplace watch to see how a supervisor handles disciplinary problems. Employees are very much in favor of the supervisor enacting fair and appropriate discipline for an employee who has broken the rules.

An employee who is always late for work affects other employees. An employee who is rude and discourteous to other employees and their clients affects the success of the workplace. A supervisor’s failure to address an employee’s behavioral problems can have an adverse effect on employee productivity as well as their trust in a supervisor. Disciplining an employee is an important part of a supervisor’s job, which involves choices about how well it is done.

Most likely your company or agency has an established a discipline policy. However, one of the first decisions that you, as a supervisor, must make is what your personal philosophy of discipline may be. In most cases, disciplining an employee can only be initiated by the supervisor.

Supervisor Stereotypes Regarding Disciplining Employees

What follows are some of the stereotypes that occur in the workplace regarding how supervisors may or may not go about discipling employees: 

1. The Don’t Rock the Boat Supervisor

This type of supervisor has an easygoing approach to discipline. They do not want to be seen as a bad person by their employees, so they are lenient when it comes to behavioral problems. As long as everything is okay, they see no reason to rock the boat by disciplining an employee. 

2. The Doesn’t Want to Take the Time Supervisor

This type of supervisor does not want to invest the time it will take to discipline an employee. However, in many workplaces, supervisors will have to work with the Human Resources department in taking action. The human resources representative will ask a lot of questions, for which a supervisor will have to justify what they want to do.

However, all of this takes time—time this supervisor is not interested in spending. The approach for this type of supervisor, is “Why bother.”

3. The Throw the Book at Them Supervisor

This type of supervisor’s first approach is just to fire the employee. They do not want to be bothered by a problem employee. In their mind, it is just easier to get rid of the employee. They, too, have no interest in spending the time necessary to work with the employee to try to improve their behavior.

4. The “I Can’t Take It Anymore” Supervisor

This type of supervisor has let things go with the employee and ignored the behavior issues for too long, but now they just cannot take it anymore and move to take a final major action against the employee. 

As the supervisor, it is your choice how you wish to maintain discipline in the workplace. You can choose to use one of the approaches above; or, instead, you can choose an approach that takes reasonable and fair actions when employees engage in behavior that is contrary to a workplace’s rules.

The Just Cause Standard

As it happens, many workplaces do not have arbitration for employees to challenge a disciplinary action. However, the Just Cause standard used by arbitrators provides a good analysis of whether an action taken against an employee is reasonable and fair. This standard is widely used in the federal, public, and private sectors where arbitration is available. 

In determining whether the discipline of an employee is reasonable and fair, it is helpful to follow the Seven Part Standard for Just Cause:

1. The employee knew of the employer’s policy.

Employers enjoy a legal and contractual right to manage their workforce by establishing the rules and policies necessary to accomplish the mission. However, the employer has a fundamental obligation to inform the employees concerning the meaning and application of workplace rules.

The employer must advise the employee that any act of misconduct or disobedience could result in discipline.

The above statement should be made clear, be unambiguous, and inclusive of any possible penalties.

2. The employer’s policy is reasonable.

A workplace rule or policy must not be arbitrary, capricious, or discriminatory and must be related to the employer’s stated goals and objectives.

Even if the employee believes the policy or supervisory direction is unreasonable, the employee must obey, except in cases when doing so would jeopardize health or safety. 

3. Was there a sufficient investigation?

Did the employer investigate before deciding about taking disciplinary and/or an adverse action?

The employer is prosecutor, judge, and jury in discipline cases, and bears the full obligation to collect all facts that are relevant to the final decision.

4. Was the investigation fair and objective?

The employer has the obligation to conduct a fair, timely, and thorough investigation that respects the employee’s right to union representation, where available, and due process.

Once completed, all facts must be evaluated with objectivity and be free from any bias or preconceived conclusion.

5. Substantial evidence exists that the employee violated the rule or policy.

Did the investigation disclose any substantial proof or evidence that the employee was guilty of violating or disobeying a direct rule or order?

Although there is no requirement of being preponderant, conclusive, or “beyond a reasonable doubt,” any proof or evidence must be truly substantial.

The investigation must be thorough and include a search for any evidence, even if it may clear the individual of wrongdoing.

If an offense cannot be proven, then no action should ever be taken because any disciplinary action will then not be based on just cause.

6. The employer’s policy has been consistently applied.

Did the employer apply all rules, regulations, and penalties evenhandedly, and without discrimination to ALL employees?

Were other employees who committed the same offense treated differently? If there was any evidence of discrimination or disparate treatment, both could automatically violate this test.

7. The discipline was reasonable and proportionate.

Was the degree of discipline administered reasonably related to either the seriousness of the employee’s offense or to the record of past service?

A proven offense does not merit harsh discipline unless the employee has been proven guilty of the same (or other) offenses several times in the recent past.

Although an employee’s past record cannot be used to prove guilt in a current case, it can be used in determining the severity of discipline if guilt is established in the current case. 

Should two or more employees be found guilty of the same offense, their respective records can and should be used to determine their individual discipline. The employer has a right to give a lesser penalty to an employee whose employment record is not tainted with prior offenses, and this consideration should not be viewed as discriminatory. The reverse can also be true.

The employee’s offense may be excused through mitigating circumstances.

Levels of Discipline 

In many circumstances, it is the choice of the supervisor whether to discipline an employee. In most workplaces, the supervisor also has a choice as to what level of discipline to take when confronted with the misconduct of an employee.

The disciplinary options available to a supervisor may, in the least severity, include counseling, either oral or in writing, or, in increased levels of severity, letters of reprimand, suspensions of a varying number of days, and finally, removal (firing) which is the most severe.

In many workplaces, there is a belief in progressive discipline, which means starting with the least severe discipline appropriate for the misconduct, and then increasing the level of discipline if there is further employee misconduct. The idea is to start lower to give the employee the chance to improve their behavior. However, progressive discipline does not apply for offenses involving criminal behavior or serious misconduct, such as significant security breaches or extended AWOL. 

Employee Counseling

The most frequently used approach to changing employee behavior is counseling. In most workplaces, counseling is the first step on the disciplinary ladder.

When teaching supervisory training classes, I advise supervisors to counsel early and often when it comes to conduct and performance issues.

Many supervisors dread counseling their employees. Counseling can have a negative connotation when considered as a precursor to disciplinary actions. However, counseling that is done well and taken seriously by the employee will negate the need for further action.

If supervisors want to become effective counselors, then they must be prepared for the task. Counseling, however, should not occur in the form of an impromptu discussion. It should be well thought out and presented.

Reprimands and Suspensions

There are a variety of actions that can be taken before an employee is fired. Examples are that employees can be reprimanded or suspended. These actions are taken to get the employee’s attention and give them an opportunity to mend their ways. For some employees, such actions send a clear message that if they want to keep their jobs they need to rethink and modify their behavior; for other employees it’s just another step to a forgone conclusion that they will be eventually terminated.

Firing Employees

On the other end of the spectrum from counseling is firing.

Very few supervisors wake up in the morning and say to themselves, “I’m really looking forward to firing one of my employees today.”

Firing, which some refer to as “industrial capital punishment,” is not a step to be taken lightly. Firing has a major impact on the employee and their family. However, it can often be the right thing to do.

If it is a government employee, then there are many due process systems that must be navigated to be able to support the firing of a public or federal sector employee. These can be both complex and time-consuming.

While many states have termination at will rules that make firing an employee considerably easier, employees have certain legal rights if the firing was done for illegal reasons, such as violations of Equal Employment laws.

There are good reasons why firing should not always be your first choice, as well as good reasons when it should be your first choice. For instance, there are significant costs involved in recruiting, hiring, and training employees. Additionally, the labor market may not have a good stock of employees with the job experience and skills needed for your workplace. If it is expensive to replace the employee and hard to find replacements, then options other than firing should be considered first. However, if the misconduct is so serious, then such financial considerations should not be used to justify not firing the employee.

In making the decision about firing someone, at a minimum, the following should be considered:

  1. Is the offense so serious that there is no viable alternative to firing? 
  2. Have efforts to change the employee’s behavior been undertaken and failed?
  3. Is there an illegal motivation for the action, such as firing based on race, sex, or religion?

In most workplaces, there are human resources staff to assist you in taking disciplinary actions that are consistent with the company or agency policy. They are there to help with the disciplinary process, which is often new to many supervisors.

While the human resources staff can assist with the process, the decision about whether to take discipline, as well as what level of discipline to impose, is the responsibility of the supervisor tasking the action. That supervisor must be able to justify the action taken and be comfortable living with the consequences.

About the Author

Joe Swerdzewski, former General Counsel of the FLRA & owner of JSA LLC is the author of The Essential Guide to Federal Labor Relations, A Guide to Successful Federal Sector Collective Bargaining, etc. For more info on JSA’s services, email info@jsafed.com or subscribe to JSA’s newsletter.