An employer’s disciplinary policy should be general enough to allow the employer to discipline an employee for any and all unacceptable conduct. But what happens if the employer’s policy is not broad enough to cover certain conduct that the employer believes merits discipline? Fortunately for most (at-will) employers, the absence of specific language in a disciplinary policy does not necessarily impair the employer’s ability to discipline appropriately, as long as the employer follows certain guidelines.
If the offense is minor, and it is not addressed or prohibited in the employer’s policies or handbook, the employee may not know that he or she is doing anything wrong. In such circumstances, the employer should first speak with the employee about the conduct and should consider revising the employer’s policies to address the conduct. If the employee does not correct their behavior after the conversation with the employer and after an opportunity to cure their behavior, the employer may want to move to formal discipline.
If the conduct is more severe, the employer may want to start by formally disciplining the employee rather than simply speaking with the employee. If an at-will employment relationship is clear, an employer may terminate an employee for any reason, as long as that reason is not otherwise prohibited by law. This is true regardless of whether the employer’s disciplinary policy addresses the conduct at issue. However, the employer must be aware of the risks involved in terminating an employee for conduct not addressed in its handbook – if the employee makes a claim for unlawful discharge (discrimination, retaliation, or the like), the employer cannot point to a specific violation of its disciplinary policies as evidence of lawful termination.
An employer may also impose less severe discipline for conduct not addressed in the employer’s policy, but it must be careful that such discipline is consistently enforced. If the employee is the first to engage in a certain type of unacceptable conduct, the employer might consider revising its policies to address that conduct (or it might consider broadening the language in its policy so that it will cover all unacceptable conduct). The employer should ensure that any employee who subsequently engages in the same unacceptable behavior receives similar discipline. If the employee is not the first employee to engage in a certain type of unacceptable conduct, the employer should determine whether, and how, it disciplined other employees who previously committed the same acts.
The keys to an employer protecting itself from liability in these situations are consistency and documentation. All employees must be disciplined consistently for similar unacceptable behavior, and the employer should carefully document the reasons for discipline and/or termination. With good documentation, the employer can show that the reasons for discipline or termination are legitimate reasons and are not pretext for an unlawful action taken against the employee.