• Sasha Struthers

5 Key Tips in Disciplining Employees for Los Angeles Employers and Managers.

Disciplining employees almost makes managers/ employers more nervous than the employee. This is due in great part to the very employee friendly laws of the Golden state of California and its even more stringent localities.

I admit, I view everything as if an employer is going to get sued at some point. Do I want that? Of course not. But I defend employers in lawsuits for a living. In doing so here are a few things I realize employer's don't take into account with employees that aren't following the rules.

1. Always document discipline. Even when the discipline is verbal make written documentation and keep it in the employee's file. Depending on your employee handbook or policies, there are general rules and workplace specific violations that an employee can be reprimanded for, including if the misdeed would be subject to a verbal warning, written discipline or immediate termination. Even if a reprimand is verbal, you want written record of it happening.

2. Written discipline should be informative. So often employers don't effectively write-up an employee, leaving the employer later clueless as to the full details of the offense and the employee is left without constructive feedback on how to avoid repetition. A few details that should be included in a written discipline:

  • Date

  • Time

  • Worksite location

  • Witnesses

  • Manager/ Employer issuing discipline

  • The issue and why it was improper

  • How many times employee has been disciplined already

  • How the employee can correct the issue

  • The action that will be taken by employer if employee does not correct the issue

The write up should be signed by the employee, the manager/ employer issuing the write up and at least one witness to the issue. A copy of the write up should be given to the employee.

3. Don't procrastinate in disciplining employees or be too soft. I have done a YouTube video on the "Bad Seed" employee, which to me is an employee that a manager/ employer has an intuitive feeling is not going to work out. Those are the types of employees that later sue. Which is why I tell my clients, being too soft on an employee sets an employer up to fail. The employee can get a sense they don't have to comply with the rules because the punishment is not severe. As soon as an employee does something wrong (i.e. comes to work late, makes an inappropriate comment, makes an avoidable mistake, procrastinates, etc.) write the employee up, or bare minimum a verbal warning. The longer you let an employee who is not a good fit or not willing to abide by the rules stay in the workplace the more havoc it wreaks on company morale and the weaker a defense to wrongful termination can become.

4. Discipline equally, among all employees. At the core of many wrongful termination cases is that an employee was treated "too harshly" or otherwise unfairly compared to other employees. This comes in the form of disciplining some people more or more severe than other employees who perform substantially the same and have similar level issues or workplace violations. If you are going to discipline, and more so if you have an employee handbook or other policies, you must discipline everyone the same, including the level of severity.

For example, A shows up late to work for the first time and you issue a verbal warning and don't write it up in A's employee file. B shows up late to work for the first time and you issue a written discipline and keep it in B's employee file. That is clearly not applying to rules equally to all. That is a surface level example, but it is a rule of thumb. But let me tell you, if B later sues for employment claims, the unequal discipline will not help you defend a case.

5. Create a tiered discipline system that works for you and stick with it. Some businesses set up tiered discipline systems to increase employee retention. This often overrides the "At-Will" employment presumption depending on how it is set up (see my blog here and here about the cautions of employee handbooks giving away the "At-Will" presumption.

Too often employers discipline as they see fit and not based on a predetermined method, leaving the manger/employer exposed to potential liability for wrongful termination. Having an objective system of discipline and sticking to it bolsters a defense later when that employee's feelings are hurt and they hire an attorney to sue you for wrongful termination. If you can point to your procedures and how you followed them it weakens the employee's case that much more.

As for the tiered part, this comes down to the employer themselves. Employers are free to be strict or lenient as they see fit when it comes to policies. This is not a one size fits all thing. Some considerations though:

  • What conduct would be considered an issue to an employer?

  • How many verbal warnings does an employer want to allow before a written discipline?

  • How many written disciplines does an employer want to allow before a termination?

  • What would be an immediately terminable offense if committed by an employee?

Employee discipline is not fun, but it is a necessary and common part of running a business. There is no specific way to run a business. There are guidelines and ideas, but I tell my clients to trust their intuition and seek legal counsel just in case.

If you have any employee issues, employment law questions or curiosities pique by this post feel free to reach out to me. You may contact me by phone at (818) 306-0686 or by email at sasha@struthers.legal

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The information in this post is for general information purposes only. Nothing on this post should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.