Put disciplinary wiggle room in your handbook

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in Discrimination and Harassment,Employment Law,Firing,Management Training,Performance Reviews

Spring cleaning? Be sure to dust off and update your employee handbook. Pay attention to this important point: When it comes to discipline policies, give yourself some flexibility to deal with unusual circumstances.

Steer clear of complicated policies that try to categorize every conceivable offense for which employees could be fired. Such restrictive policies can inadvertently eliminate your at-will right to fire at your discretion. 

Best practice: If your progressive discipline policy includes a list of broad firing offenses, add a disclaimer that says something like, “These rules are guidelines only. The employer reserves the right to implement whatever level of discipline it believes is appropriate, up to and including termination, even on a first offense.”

Recent case: The discipline policy at the Forrest City, Ark., fire department required employees to behave well both on and off duty. The handbook specified a list of dischargeable offenses—including felony convictions. But it wisely also included a disclaimer saying the list was not exhaustive.

Firefighter Calvin Chism has a history of run-ins with the law. He’d been arrested for battery, domestic battery, assault and aggravated assault over the course of his career.

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When Chism was arrested yet again—this time on charges of receiving stolen property—the department fired him.

That charge was eventually dropped, meaning Chism still had no felony convictions. That, he argued, meant he shouldn’t have been terminated. He sued, alleging race discrimination.

The court disagreed. Reason: The fire department’s handbook made clear that the examples of misconduct justifying discharge weren’t exhaustive. Plus, it required workers to exhibit good behavior. A history of repeated arrests violated that policy, even if none of the arrests led to a felony conviction. (Chism v. Curtner, et al., No. 09-2632, 8th Cir., 2010)

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