With the vast amount of employment laws, both State and Federal, sometimes it seems impossible to navigate through the normal processes of Human Resources, such as disciplinary actions and terminations, without the fear of litigation.

While many employers seem to avoid the navigation all together by simply not addressing an employee’s poor performance, frequent absences, or inappropriate behavior, this can most often create even bigger problems down the road.

Rather than avoid any action, in fear of a legal claim that could be lodged against you, take action with confidence.  Remembering a few very simple steps, can take away your fears and provide you with confidence that you are handling the situation in a way that will keep you out of the courtroom, yet hold employee’s accountable for their actions.

The first thing to remember when you face disappointing behavior on the part of an employee, is to review your policies, in particular, your general disciplinary policies and procedures.  Your disciplinary policy should:

  • Ensure that you are applying appropriate punishment for the crime.  Not all wrongdoings are deserving of termination.
  • Ensure that all employees are aware of your disciplinary policies.  If your disciplinary policy is spelled out in your Employee Handbook, be sure to obtain a signature of understanding and acknowledgement of receipt from your employees, upon the distribution of the Handbook.
  • Ensure that your Disciplinary Policy provides for a notice (preferably written) to the employee letting them know that their job may be in jeopardy, should their behavior continue.
  • Ensure that your Disciplinary Policy offers an opportunity for improvement, for those less serious infractions.
  • Ensure that Discipline is issued consistently.  Disciplining some employees but not others for the same types of infractions is just asking for a discrimination claim.
  • Be sure to follow your policy, as it is written.  Should you find that you need to change your policies, be sure to communicate the change to all employees.
  • Document, Document, Document.  Assume that you will have to defend your actions in court every time you issue discipline.

Before making a final decision to fire someone, take a step back from the situation for a moment to review your practices.

  • Ask yourself if a personal dislike of the employee is leading your decision, or affecting it in any way.
  • Review actions taken with other employees who may have exhibited similar behavior or experienced similar rule violations.
  • Ask yourself if you are you receiving pressure from above that may stem from others who may want to see this employee gone.
  • Be aware of any recent complaints made by the employee that could be an underlying reason for your action.

Most all of the employment laws, both State and Federal, prohibit retaliation against employees who exercise their rights under those laws.   Retaliation may appear to be present, even though it is unintended.  Retaliation is any adverse action that is taken against an employee for filing a complaint, supporting another employee’s complaint, or otherwise asserting the employee’s rights under a State or Federal employment law.  Retaliation is often difficult to disprove.  Once the elephant is in the room, it is difficult to separate the two.  In 2013, the State of Indiana processed 3,067 total charges, and 38% of those were Retaliation charges.  This represents more than Race discrimination charges and more than Sex discrimination charges.  On a Federal level, 38,831 Retaliation charges were resolved in 2013, resulting in 169.4 million dollars in settlements.

If you run fearful of litigation, avoiding disciplinary measures to hold employees accountable, turn to Axiom Human Resource Solutions to provide guidance so that you can be confident of your decisions and maintain control of your employees.