Aggressive and Progressive:
A Disciplinary System
that Works

Progressive discipline is a multi-step process that typically begins with an oral warning of the misconduct. For many employees, a counseling session with HR personnel or the supervisor will solve the problem. Normally, the supervisor or HR professional identifies the problem, states the employer’s expectations, and explains the consequences of continued misconduct. The supervisor or HR professional should keep a confidential record of the counseling session to document the conference and file a copy in the employee’s personnel file.

If the employee’s behavior does not improve, a written warning usually follows. As with oral notice, the supervisor or HR professional informs the employee of performance expectations and consequences, documents the conference, and places a copy in the employee’s personnel file. Some employers purge the notice after one year if there are no further occurrences of misbehavior. Most employers retain it to use in subsequent performance appraisals or promotion decisions.

The next stage in progressive discipline is either paid or unpaid suspension. Frequently the last step before termination, this enforced absence gives the employee an opportunity to consider past actions and future behavior. Typically, the HR manager or other member of management should review the suspension decision to determine if it is appropriate based on past disciplinary actions. Employers should note that suspending an exempt employee without pay for any week in which he has worked at least part of the week may jeopardize the employee’s exempt status, and the employer can be liable for overtime wages under the Fair Labor Standards Act.

The final step is termination. To ensure that discharge is the appropriate response, all decisions should be reviewed by at least one level of management above the immediate supervisor, such as the HR manager. In confirming the termination decision, managers should consider the severity of the problem, the employee’s work history with the organization, and how similar disciplinary problems have been handled in the past. This review provides a system of checks and balances and can prevent questionable termination decisions that may result in legal claims. To lend additional credibility and a sense of fairness to the process, some organizations allow the employee to appeal the decision through the employer’s complaint resolution procedure.

To be successful, progressive discipline requires supervisor training. In particular, supervisors should be trained in counseling employees about their performance problems and in proper documentation of the disciplinary sessions. For example, supervisors should be trained to keep comments as factual and objective as possible. Subjective comments, such as “you have a bad attitude,” can be difficult to prove and do not give the employee specific guidelines for improvement. Supervisors also should be taught to document all aspects of the disciplinary process, including recording the nature of the misconduct, the consequences, and the required improvement. Documentation can show the supervisor’s attempts to help the employee improve and may be helpful in defending against legal claims.

To communicate conduct and discipline policies, employers should include them in employee handbooks. Every employer also should reserve the right to discipline employees at its discretion without following the progressive discipline policy. By maintaining discretion, the employer can consider mitigating circumstances, such as the employee’s past performance or whether a coworker provoked the employee’s misconduct. In many cases, the employer’s choice of discipline depends upon the severity and frequency of the behavior. Discretion to bypass the disciplinary procedures also may be important in litigation. Some courts have held that a progressive discipline policy creates a contractual obligation to follow all steps before termination.