Written By: Scott R. Thomas

Progressive discipline is the concept that an employer should impose increasingly severe consequences in response to repeated employee infractions, despite counseling and time to correct the misbehavior.  Judges and the Equal Employment Opportunity Commission (“EEOC”) love progressive discipline.  For them, it indicates efforts by the company to fit the punishment to the crime.  Progressive discipline enables the manager to take into consideration not only the offense but also the offender.

Of course, I shouldn’t use the word “punishment.”  In these politically-correct times, employees are not “punished” for misbehavior.  Rather, they are “coached” about “opportunities for improvement.”  Managers are forced to drop productive activity and stop to create a written “personal improvement plan” because employees in the modern workplace apparently need to be told, for example, about the benefits of showing up to work on time.

Some proponents of progressive discipline espouse that employers use a graduated scale in imposing discipline.  This starts off with the “oral warning,” as in “Hey, Bob, work starts at 9:00.  That doesn’t mean you walk in the door at 9, take off your coat, get a cup of coffee, chat up the receptionist, and start working at 9:20.  I need you at your desk ready to go when the clock strikes nine. Any questions?” Actually, “oral” is a misnomer because progressive discipline adherents still want the supervisor to document in writing that the employee was orally counseled.  This must be memorialized in thorough fashion: you recite the facts of the event, spell out what you said to the employee, and what the employee said in response.  This document must be dated and maintained, all because the employee can’t get up out of bed in the morning like everybody else.

Then when the employee’s misbehavior continues, you escalate to the “written warning.”  The difference between the written warning and the oral warning is     merely that you give the employee a piece of paper that repeats what you said to the person.  Progressive discipline advocates want you to give a few written warnings.  When those don’t work, you are supposed to expand the written warnings to include a “Corrective Action Plan” with steps to be taken by the employee and perhaps a timetable for their completion.  We might envision “1.)  Bob buys alarm clock.  2.)  Bob sets alarm clock for an hour that will enable him to be at his desk by 9.  3.)  Bob sets alarm clock in far corner of bedroom to avoid hitting snooze button in slumberous stupor. Etc.”

When that doesn’t work because there was a traffic delay or a power failure, the manager meets with the employee to tweak the plan: “4.)  Set alarm for earlier time to allow for traffic contingencies.  5.)  Buy wind-up alarm clock as back up measure.  6.)  DVR Colbert instead of staying up to watch it; Etc.”

When that doesn’t work, progressive discipline shills will tell you to suspend the employee.  The first suspension might be with pay (a paid vacation for the misbehaving employee?!?), the second suspension without pay.  When those measures fail, progressive discipline pundits say the employer may then and only then reluctantly consider terminating the employment.

Courts and the EEOC like seeing this escalating discipline because it is a powerful rebuttal to an employee’s claim that he got fired because of skin color, land or date of birth, or the God he prays to.  At the end of the day, however, you still have a “he said, she said” kind of battle between the employee and the employer.  That factual dispute may be enough to deny the employer summary judgment on a bogus claim, even if the employer’s documentation is perfect.  And all of this comes at significant cost.  Engaging in a progressive discipline dance with the employee reduces the productivity of both the superior and subordinate.

Devotees of progressive discipline also contend it helps put employees on notice of what conduct is and isn’t permitted.  In my view, that’s the job of a comprehensive Employee Handbook.  To be sure, the Handbook can’t think of everything.  Employees will often display surprising ingenuity in devising misbehavior not expressly forbidden in the company policy.  We only have to remember George Costanza who admitted having sex on his desk with the cleaning lady but said: “Was that wrong? Should I not have done that? I tell you, I gotta plead ignorance on this thing, because if anyone had said anything to me at all when I first started here that that sort of thing is frowned upon... you know, cause I’ve worked in a lot of offices, and I tell you, people do that all the time.”

The supposed benefits of progressive discipline also have to be weighed against its disadvantages.  For one, progressive discipline is a very subjective game.  When you impose discipline in this structure, you are obliging yourself to give the employee a reasonable time to correct the behavior.  How much time is “reasonable” is open to debate.  For another, progressive discipline is hindered by its singular focus.   Giving Peter an oral and then a written warning about his absenteeism does the employer no good when Peter fails to turn his TPS report in on time, despite getting “the memo.”  The employer then has to start over with progressive discipline on that conduct because corrective coaching about absenteeism is unrelated to shortcomings in performing assigned tasks.

Progressive discipline is simply ill-equipped to cope with the fact that every situation is unique.  The very strength of progressive discipline—that it can be tailored to the specific needs of an employee and his misbehavior—is also a potential liability.  If one employee is given a verbal warning for an unexcused absence and another employee is given a written warning, you can expect the latter to infer that a more severe consequence was imposed for an impermissible reason.

The concept of progressive discipline has become so engrained in recent years that many employers are under the misguided belief that progressive discipline is a requirement.  It is not.  I’m not talking about the line in the Employee Handbook that says “Although the company favors progressive discipline, the company reserves the right to impose the level of disciplinary action appropriate to the situation, including immediate termination.”  Everyone knows that if Peter Gibbons embezzles $300,000, the company need not issue warnings before firing him.  That said, many employers feel enslaved by progressive discipline.

Two take-aways:  First, progressive discipline is your tool.  You are the master.  The tool serves you, not the other way around.  Second, the “at will” employment doctrine always trumps progressive discipline.  You can terminate the employment of an “at will” employee at any time for no reason at all.  What you can’t do is terminate an employee for a legally impermissible reason.  So don’t lament when a supervisor comes to you and says: “I’ve counseled Tyler Durden three times about his absences and personal appearance and I want to let him go but I forgot to document the counseling.”  No legal requirement for either the counseling or the documentation exists.  You may be theoretically more vulnerable to a claim because of the absence of documentation but your ability to discharge Tyler is unimpaired.

If you would like more information about these issues, please contact Scott Thomas.   He welcomes the opportunity to help you navigate these and other employment law waters.  Scott’s direct line is 859.578.3862.  You can email him at [email protected].  If there is a particular topic you would like to see addressed in a blog, please send Scott an email with your ideas.