Key to progressive discipline: Implement steps consistently, keep solid documentation
If you have a progressive disciplinary policy that gives employees a chance to improve when they make mistakes, make sure you use it consistently. It will pay off if you follow your policy, fire an employee and the employee later decides to sue.
A court probably won’t try to second-guess your decision if you can produce clear records that explain your disciplinary policy and exactly how you applied it to the employee you ultimately discharged.
Recent case: Pamela worked for the University of Pennsylvania’s Hematology and Oncology Department as an administrative assistant.
The university has a progressive discipline process that calls for issuing an oral warning, followed by a written warning and probation. Only then can someone be discharged for most job-related problems such as poor performance or on-the-job errors.
Pamela received a written warning for job deficiency in patient care and administrative work. Six months later, she received another oral warning, this one for poor time management and problems with time card submissions and patient prioritizing. Two months later, she met with her supervisor to discuss how she could improve her job performance. She was still under a continuing oral warning at that time.
About a year later, Pamela received her first written warning for incorrectly entering prescription information into a patient’s electronic chart and for allegedly violating the Health Insurance Portability and Accountability Act by mistakenly leaving a patient’s test results on another person’s voicemail.
About nine months later, she was placed on probation for not checking her email and voicemail and for sending a message to the wrong doctor. The probation notice warned her that she had to complete probation, but that any further performance problems after probation ended could still subject her to immediate termination. She completed probation, but then she made another HIPAA mistake by emailing confidential patient information to the wrong person. The university fired her.
She sued, alleging that she had really been fired in retaliation for an earlier EEOC complaint she had filed. (It went nowhere because she missed her deadline to file a lawsuit after receiving the EEOC’s right-to-sue letter.) She was fired just a few days after the deadline for filing suit expired.
The court carefully reviewed the university’s disciplinary process and concluded it had followed it properly. It reasoned that since Pamela had been warned that any new infraction might mean termination, there was nothing suspect about the discharge. Plus, it was clear that none of the decision-makers knew about the right-to-sue letter or its expiration, making the discharge even less suspect. The court tossed out Pamela’s lawsuit. (Macknet v. University of Pennsylvania, 3rd Cir., 2018)
Final note: It’s perfectly acceptable to build some flexibility into your disciplinary process. For example, you may want to include a provision allowing for immediate termination in particularly egregious circumstances. In a hospital setting, for example, you might provide for immediate termination in the event of a serious mistake that compromises patient safety.
Check to ensure that you have been implementing your disciplinary process consistently over time. Are you holding some workers to the process, but not others? That can spell big trouble unless you carefully document why a particular mistake or policy violation deserved different, more lenient treatment.