Dealing with Employee Behavior and Performance Issues
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. A rigid set of procedures that don’t allow for discretion, can open employers up to claims of negligence, discrimination, breach of contract, and others if you don’t consistently follow them for each circumstance.
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. If your policy lists certain unacceptable behaviors, make sure it also states that the list is not exhaustive.
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.
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.
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 Aside from legal issues related to discipline, handbooks can quickly become outdated.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.
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.
Posted October 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.
