Guide to Progressive Discipline

The progressive discipline process provides a thoughtful and equitable method of addressing unsatisfactory performance or inappropriate employee behavior. The progression of steps provides an opportunity for improvement or correction before further disciplinary action is applied.  However, a single event can cause for termination in certain circumstances. 

Just cause for disciplinary action is used to determine if the application of discipline was fair, reasonable and with due process.  As the concept of just cause has developed over time, it has often been articulated as a series of questions:

  • Did the employer have reasonable proof of a policy violation and/or unsatisfactory job performance?
    • Was the policy and/or performance expectation reasonable?  Did the employee have knowledge of the expectation and potential consequences for non-compliance?
    • Was the investigation fair, timely and objective?  Was the investigation completed prior to making any decision related to discipline?
    • Were the employee’s rights afforded to them during the investigatory process, e.g. any right to representation, opportunity to respond to the allegations and Loudermill hearing prior to discharge?
    • Was the level of proof gained through the investigation sufficient for the action contemplated?
  • If the answer to the first question is yes, what proof is there that an appropriate level discipline was applied?
    • Has the employer applied disciplinary penalties consistently for similar offenses and without discrimination?
    • Were other relevant factors considered in determining the level of disciplinary action, e.g. employee work history, impact of the offense/error, potential for future success, etc.? 

Verbal Counseling/Coaching Conversations (non-disciplinary)

Timely counseling/coaching by the immediate supervisor is the initial step to mentor or coach performance improvement. Note, however, that management should typically not counsel more than once on any particular issue unless significant time has passed or circumstances changed.

After consultation with Human Resources Representative or Employee and Labor Relations, meet with the employee in-person to:

  1. Confirm or clarify expectations regarding performance or conduct.
  2. Discuss the specific performance deficit or behavioral concern.
  3. Allow opportunity for feedback/input from employee
  4. Provide a timeline and resources for improvement (e.g. restatement of expectations, training resources, checklists, weekly feedback etc.).  In the case of misconduct, immediate change should be expected.
  5. State that failure to improve may lead to further discipline, up to and including termination of employment.
  6. Document conversation in the supervisory/management file or spreadsheet.

 

Progressive Steps

Formal disciplinary action will typically begin after a thorough and thoughtful counseling process is completed and the employee has been given opportunity to demonstrate improved performance or lack thereof. Formal disciplinary action usually begins at the lowest step in the Progressive Discipline process, though steps may be skipped depending upon the seriousness of the conduct. Depending upon the progression, the second or third progression may be the final disciplinary notice before termination.  At each disciplinary step, Just Cause must be established. 

Progressive formal discipline and the establishment of Just Cause are not necessary for staff in a probationary or at-will employment status.  However, management must be able to identify a “neutral” business case to establish (i.e., rebut an allegation) that the basis for the decision was not discriminatory. A progression of coaching/counseling conversations may be appropriate for individuals in these employment statuses, but it is not necessary to meet the tests of just cause.  In handling performance or behavioral concerns for these employees, supervisors and Human Resource Representatives are expected to consult with their Senior Human Resources Representative to review the individual circumstances and application of progressive discipline.

 

Notice of Discipline

The immediate supervisor is expected to consult a Human Resources Representative before conducting an investigation or taking action. Before presenting an employee with a formal notice of discipline, management must establish that the standards of Just Cause are met. The notice should contain the following elements:

  • The level of discipline being imposed;
  • Describe how management’s expectations were previously communicated to the employee;
  • Describe previous efforts to correct the performance/behavior (e.g., prior formal discipline);
  • Describe the most recent event(s) warranting the current discipline;
  • The rule/policy violated;
  • Notice that continued failure to meet expectations or comply with rules/policies may result in further discipline, up to and including termination; and
  • Signatures of supervisory authority and the date of imposition.

 

Distribution of the Notice:

  • Original to the Employee
  • Copies of the signed original to:

 

Termination of Employment

The immediate supervisor is expected to consult a Human Resources Representative prior to termination. As with other formal disciplinary measures, management must establish that the standards of Just Cause are met.

Review the Involuntary Termination Toolkit and plan to the meet with the employee accordingly.

Prior to delivering a notice of termination:

  • Management must provide written notice to the employee that terminations and resignations in lieu of termination are public records, pursuant to Chapter 22.15 of the Iowa Code.
  • Conduct a Loudermill hearing. Schedule a final meeting with the employee, inform the employee of the findings of the investigation and management’s conclusion that termination appears to be warranted. Provide the employee an additional opportunity to be heard in response to the findings. If the employee provides new information, caucus to consider the additional information and determine whether termination is still warranted or if further investigation is necessary. If no mitigating or extenuating evidence is presented, provide the notice of termination to the employee. (Although the Chapter 22 notice may be provided earlier [e.g., at the investigatory interview], the Loudermill hearing is the final opportunity to meet the legal requirement of presenting the notice prior to termination.)                                                                                                                                                                                                                             

Additional Considerations for terminations:

  • Conduct Loudermill and termination meetings outside of the normal work area (i.e., minimize opportunities for humiliation of the subject employee).
  • Do not allow the terminated employee to return to his/her workstation. If there are items at the work station that the employee requires immediately (e.g., car keys), a management representative can retrieve such items. Additional personal belongings can be gathered by management and made available at a future date.
  • If there is concern that the employee could become distraught/disruptive, convene the meeting at USB with the Threat Assessment Team present.

When necessary, the termination notice may be sent via certified mail.

 

Distribution of the Termination Notice:

  • Original to the Employee
  • Copies of the signed original to:

 

Resources:      

ELR Templates (e.g. Clarification of Expectations, Notice of Discipline, Performance Improvement Plan)

ELR Involuntary Termination Toolkit/Checklist

ELR Public Records Notice Template

ELR Administrative Leave Template