Do you remember detention? You know, that thing you were sent to because you shot spit-wads into Suzy Miller’s hair. Or because you thought it’d be funny to try to make bacon out of your dissected fetal pig by holding it over a Bunsen burner. Or because…wait, perhaps I’ve already said too much.
Perhaps an SAT-style analogy problem might be a better intro:
“Detention” is to “improved student behavior,” as _______ is to “improved employee behavior”
Give up? The answer, of course, is “cattle prods and ice baths.” Oops, no, I actually meant “discipline.”
I’ve previously written on the importance of approaching discipline with the right mindset, since once you can see discipline as an opportunity to help somebody become successful in your organization, you are more likely to have the right performance conversation at the right time.
But, once you’ve decided to go down the discipline path, what can you do to increase the likelihood that it will have the desired effect, while, at the same time, reducing the potential legal risks you might face?
Well, it just so happens that I have some thoughts on that.
Consistency is critical to effectively managing a team, as it enables employees to know what to expect, which, in turn, helps them to self-regulate their behavior. Just as importantly, it creates a perception of fairness, since everyone is treated similarly. In turn, this sense of fairness reduces the likelihood of an employee pursuing a lawsuit, as well as the likelihood of such a claim being successful if it is pursued.
Unfortunately, whether we’re aware of it or not, most of us intuitively play favorites. In the workplace this translates into downplaying or ignoring the faults of those people we like, while exaggerating or inventing the faults of those about whom we have a negative opinion. Once we’ve drawn our conclusions about someone, we start to interpret their actions in ways that affirm the conclusions we’ve drawn. In practice, this means we often have wildly different opinions of the exact same set of behaviors depending on who the actor is.
When the actor happens to have protected class status (e.g., age, race, gender, disability status, etc.), the motivations for our treating this person differently from a coworker who is demonstrating the same behaviors can appear to be discriminatory. Indeed, the majority of employment lawsuits aren’t based on direct evidence of discrimination, but the appearance of discrimination, which, in turn, is drawn, primarily, from the fact that the plaintiff was treated differently than a coworker.
Making sure problems are addressed consistently throughout your team will go a long way toward making performance conversations with employees easier, while keeping you out of court.
Most of the time, formal discipline should not occur until after repeated coaching efforts have failed. However, for most legal purposes, a conversation that is not documented is a conversation that never happened, since the burden isn’t on the employee-plaintiff to prove a meeting didn’t take place. Instead, it is almost always the employer’s obligation to prove that the meeting did occur.
Therefore, it is vitally important that each coaching interaction be documented in a supervisory log that records the basic facts and dates of every such conversation. Employees shouldn’t know that supervisors are maintaining such logs, and certainly shouldn’t be provided with copies of the notes. And, to be maximally effective, such logs should record not just negative performance, but should also include successes, as well.
Having a clear and ongoing record of performance not only helps to insulate you from liability, it can also serve as the foundation for performance evaluations, identify the need for additional coaching, and determine when discipline has become necessary.
Another way to minimize the risk of unequal treatment while making the process of coaching and disciplining easier is to have performance standards that are clearly defined and have objective, measurable outcomes.
Your employees and managers should have the exact same understanding as to what is expected, the consequences of not meeting those expectations, and the process for addressing problems. Employee handbooks are one place to establish objective expectations, as are updated job descriptions, written project assignments, year-end goal setting plans, etc.
Ultimately, clear standards help make the process of managing people easier, since employees can’t claim surprise if they’re disciplined for falling short of commonly understood expectations. Moreover, objectively defining expectations increases the likelihood that they’ll actually be met, while reducing the risk of employees being treated differently, since everyone will be held to the same standards.
In the end, managers are almost always greatly relieved once they’ve actually delivered timely and properly crafted discipline. And, effectively utilized discipline can often lead to improved performance, which is a win-win for everyone involved.
Nonetheless, it is still vitally important to make sure that each step of this process is handled correctly. We have a number of ways in which we can help you be much better at making the tough decisions while staying on the right side of the law: attend our Leadership skills: Discipline and termination webinar on May 11, bring one of our HR Consultants / attorneys out to train your managers, or if you are a Hotline client, give us a call.
For more information about discipline and termination and other HR issues, please contact us.
James provides guidance to employers on a variety of topics with a focus on employment, risk management and liability issues. In addition to working directly with employers, he regularly conducts in-depth training through webinars, at client sites, and through the University of Minnesota’s Continuin
James provides guidance to employers on a variety of topics with a focus on employment, risk management and liability issues. In addition to working directly with employers, he regularly conducts in-depth training through webinars, at client sites, and through the University of Minnesota’s Continuing Ed program. He previously was a plaintiff’s attorney and brings that perspective into his advice to employers. James received his law degree from the University of Minnesota and his BA from Washington University in St. Louis.
Everyone knows that discipline and termination are fundamental parts of the employment process, and that if they aren’t handled properly, employers are likely to lose any unemployment claims, EEOC charges and lawsuits that might result. So why is discipline so often handled poorly or avoided altogether?
Consistency is critical to effectively manage a team, as it enables employees to know what to expect which, in turn, helps them to self-regulate their behavior. Just as importantly, it creates a perception of fairness, since everyone is treated similarly. This sense of fairness reduces the likelihood of an employee pursuing a lawsuit, as well as the likelihood of such a claim being successful if it is pursued.
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