Why Your Discipline Policy Needs to be Flexible

When it comes to addressing bad behavior, poor performance, or code of conduct violations, an employer should have a policy and procedure for employee discipline. But having too rigid of a discipline plan and not following it consistently can lead to lawsuits. 

“When you create a rigid set of procedures that don’t allow for discretion, it opens you up to claims of negligence, discrimination, breach of contract, and others if you don’t consistently follow them for each circumstance,” stated Kay Landwehr, a litigation specialist in casualty claims at Brotherhood Mutual.

It’s important to carefully craft a discipline procedure that gives you, as the employer, the ability to apply the action that’s best warranted for the conduct without being overly prescriptive. “The problem is that you can’t account for every situation that will require discipline or corrective action, some of which may include immediate termination,” noted Landwehr.  Therefore, having a discipline policy that allows for an appropriate response to the type of policy violation is better than following a set progressive discipline policy.

 Need to craft a policy or update your current one? Check out our Sample Policy - General Discipline. 

If your policy lists certain unacceptable behaviors, make sure it also states that the list is not exhaustive. Colleges can get into trouble when they don’t give themselves discretion within their policy, especially for egregious acts.

Discretion is a key element to include in your disciplinary procedures, and it can be as simple as stating some steps that you “can” or “may” consider when addressing performance or discipline issues. “Discretion gives an organization the ability to address issues based on the individual circumstance,” said Landwehr.

Documentation is also an important component of your procedures. Good documentation practices include clear, concise statements regarding employee behavior and expectations, detailed action plans with specific steps that help employees improve, and identified deadlines to achieve the desired outcome.  Being able to show that you gave an employee many chances to improve performance or correct behavior can help protect your organization should it become necessary to terminate employment.

Caution: Progressive Discipline Plans

While progressive discipline can address many workplace issues, there are legal disagreements about whether a written progressive discipline policy should be included in an employment handbook.

Progressive discipline can lead to claims of negligence, breach of contract, or discrimination if each step is not followed before making the decision to terminate someone. Using the terms “progressive” or “progressive discipline” implies that you’ll rigidly follow each step outlined in your procedures, for example verbal warning, written warning, improvement plan, last chance agreement, and termination.

Because a progressive discipline policy can seriously compromise an organization’s discretion in individual circumstances, it is recommended that a progressive discipline policy not be included in the employee handbook unless the organization intends to faithfully and consistently adhere to the policy.

But if you do have a progressive plan, make sure you include language that does not lock you into following every step in every situation. One example is to add “up to and including termination” in your handbook or consider renaming 'progressive discipline' to 'corrective actions' that allow your organization to select the appropriate type of discipline for the situation. (See the Progressive Discipline entry in our Working Together resource for more information.)

Regardless of what you call your discipline plans, it is important that your organization state that the types of discipline outlined in your organization's handbook are examples of corrective actions that may be used to address violations of policy and that your organization reserves the right to choose any form of discipline that is appropriate to address the situation, up to and including termination.

Providing the necessary flexibility in your procedures means you’re not locked into treating every situation the same way. While an organization should consistently enforce its discipline policy in all circumstances where it’s needed, the outcomes of enforcement may vary depending on the individual circumstances. Having flexibility helps to minimize unintentionally violating the rights of faculty, staff, or contracted workers, which can lead to lawsuits, reputational harm, and potential loss of accreditation.

Keep Your Plans and Handbook Updated

Many employment-related lawsuits can be traced back to an organization’s employee handbook. Aside from legal issues related to discipline, handbooks can quickly become outdated. “State laws vary, and frequently change, so failing to regularly review and update your handbook can get you into serious trouble,” said Landwehr.

It’s best practice to work with a locally licensed attorney who can help you make sure your policies and procedures follow the laws in your area. Additionally, review and update your procedures every year to ensure they accurately reflect any changes in employment law, enlisting the help of a local attorney, as needed.

Carefully crafting your employment policies and procedures, as well as working with a local attorney, can help minimize the opportunity for costly mistakes.

A Note About At-Will Employment

If you’re in a state with at-will employment, you may think an employee can be fired for any reason. What it really means is that employers can terminate an employee for any legal reason. However, this process can vary based on whether you’re dealing with faculty or staff. For example, a faculty contract or tenure policy may require for-cause termination. However, even with faculty contracts or tenure policies, it is a good idea to state that conduct may result in immediate termination, such as dishonesty, misconduct, violation of morals clause, etc.

Insurance Protection

Since employment-related claims can be costly, it can be helpful to protect your educational institution with Employment Practices Liability insurance. Consider obtaining a policy that provides for defense costs outside the limits, which preserves the policy's ability to cover potential damages up to its full limits.

Related Resource

• Working Together Guide to Employment Practices

Posted October 27, 2022

The information provided in this article is intended to be helpful, but it does not constitute legal advice and is not a substitute for the advice from a licensed attorney in your area. We strongly encourage you to regularly consult with a local attorney as part of your risk management program. Your organization is responsible for compliance with all applicable laws.