Build a Sturdy ‘Escape Hatch’ Into Your Organization’s Discipline Policy — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily
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Build a Sturdy ‘Escape Hatch’ Into Your Organization’s Discipline Policy

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in Employment Law,Human Resources,Leaders & Managers,Performance Reviews

Does your employee handbook outline a progressive discipline process and also include a contract disclaimer? If so, you may think the disclaimer prevents employees from claiming that the discipline policy was a "contract" that can't be skipped over in favor of instant termination. But you'd be wrong.

As the following case shows, courts could require you to follow the letter of your progressive discipline language.

That's why it's vital that your discipline policy include language allowing you to skip progressive discipline when necessary. Retain the right to fire employees for serious offenses without having to go through progressive discipline.

Recent case: U.S. Bancorp's employee handbook explicitly said that, "policies and procedures do not constitute a contractual obligation," and that "employment with the company is an at-will relationship."

Still, after the company fired employee Susan Messinger for allegedly violating a company policy, she sued claiming the handbook guaranteed her the right to progressive discipline before termination.

The handbook stated that the company's progressive counseling "will provide [the employee] with a reasonable opportunity to make the necessary improvements in order to succeed."

The 9th Circuit Court of Appeals sided with Messinger. Despite the contract disclaimer language, the court said the handbook promise to provide a reasonable opportunity to improve negated the disclaimer language. (Messinger v. U.S. Bancorp, No. 04-35548, 9th Cir., 2006)  

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