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Progressive discipline is a system that provides increasingly severe warnings for repeated employee conduct that either disregards the employer’s policies and procedures or fails to fulfill performance expectations.

Using a system of progressive discipline in reaction to poor performance or rule violations can help employers avoid employee legal claims (for example, employment discrimination, sexual harassment, unemployment insurance and wrongful discharge) and improve staff performance and attitudes.

A typical progressive discipline system will have five steps: a verbal warning (that is documented), a written warning, a final written warning, an unpaid suspension (during which time, termination may be considered) and finally, termination of employment.

Depending on the severity of the issue, an employer may decide to skip one or more steps of the progressive disciplinary process.  It is important that employers provide themselves with the flexibility to do so. In addition, any escalation in the progressive discipline process should be done consistently among employees who may be viewed as similarly situated.  It is also important to clarify what is not appropriate under a system of progressive discipline.

The goal of discipline should be to change behavior and/or improve job performance so employees never reach the next step.  Therefore, some employers attempt to be creative with disciplinary measures that they feel will motivate an employee to change the undesired behavior. However, an employer is limited as to the things it can lawfully do. For example, an employer may not withhold an employee’s wages (which may include earned vacation time or other paid time off) as a form of discipline. This would be illegal under the Fair Labor Standards Act (FLSA).

An employer is required to pay an employee for all time worked. In addition to the FLSA, state laws may also limit the deductions that an employer may take from an employee’s paycheck. An employer that violates the requirements of the FLSA can face civil penalties of up to $1,100 for each violation.

Progressive discipline can be effective in changing employee behavior and protecting an employer from liability. However, employers should be aware of the forms of discipline that will create liability.

For more information email Sue Justice at sue@emerybenefitsolutions.com