Having a clear disciplinary policy is essential for employers for a number of reasons. It helps employees understand what behaviors are not acceptable in the workplace, and if enforced consistently, it serves as a significant deterrent to unwanted or unlawful behaviors by employees. The end result is, hopefully, a productive workplace with fewer disruptions and higher employee morale. Further, having a clear, consistent discipline policy can help an employer avoid legal claims by employees or former employees.
For example, an employee might bring a claim against their employer in which the employee asserts that a certain disciplinary action was taken against the employee on the basis of discrimination or retaliation. The employer might counteract that claim by introducing evidence that the same type of discipline has been consistently given to all employees who have violated similar policies, including employees who do not share the same protected characteristics as the employee who brought the claim. As another example, an employer might wish to dispute a former employee’s entitlement to unemployment insurance benefits. If the employer has a clear disciplinary policy in place and can show that the terminated employee violated the policy, it is more likely to prevail in fighting the employee’s rights to unemployment compensation based on the employee’s misconduct.
A good disciplinary policy should include a written code of conduct or a list of unacceptable behavior. Employees should be asked to sign an acknowledgement that they have received and reviewed a copy of the policy. The purpose of distributing this information in writing to employees is to provide clear instructions for the employer’s expectations in the workplace and to give employees a reference to which they can look back. The language in an employer’s code of conduct should be specific enough to notify employees of what types of conduct are unacceptable in the workplace, but it should also be broad enough to cover all unacceptable conduct that might arise, even if the conduct is not specifically described in the policy.
The employer might also consider outlining its actual disciplinary stages or policies in the handbook, though it should be careful not to box itself in on potential disciplinary options for certain conduct. For example, an employer may want to follow a progressive discipline approach, which can have many benefits in the workplace. But putting such a policy in writing might hamstring the employer’s ability to apply more severe discipline when it believes more severe discipline is warranted. Therefore, the employer should always clearly reserve the right to apply any discipline, including termination, for any conduct. Even with this disclaimer though, the employer must be sure that it intends to consistently follow its progressive discipline policy when possible, because failure to follow it in certain instances may lead to claims of discrimination or retaliation. Because of these potential pitfalls, smaller employers who can more easily track and consistently apply employee discipline might benefit from not including a progressive discipline policy in their written handbooks.
Finally, if employment is at-will, the policy should emphasize that, and it should avoid any language that might imply employees will continue to have a job as long as they behave in certain ways.