Employees Using Progressive Discipline: When
positive reinforcement doesn't work
(from Maine Townsman, October 1995)
by Thomas H. Somers
Virtually every supervisor is responsible for a "problem employee": that individual with a history of performance problems or misconduct who never seems to improve enough to become an asset or to do anything egregious enough to warrant termination.
Managing the "problem employee" can be even more complicated when the person is also a member of a class that is protected by law such as race, religion, sex, disability, pregnancy or workers' compensation status.
It is only natural for supervisors to not want to confront the employee and his or her problems directly. This approach, however, only complicates the issue by making the problem employee more difficult to manage in the future. Avoidance may also needlessly expose the employer to future liability should the employee be demoted or terminated.
The most effective way to manage the problem is for the employer to focus its attention and the individual's attention directly on the problematic conduct or performance issue as early as possible and to document the steps taken in an attempt to alleviate the problem.
Progressive discipline is the converse of positive reinforcement. Whereas positive reinforcement seeks to enhance employee performance on the basis of praise, a progressive discipline system warns employees, in stages, of the consequence of their poor performance. In essence, progressive discipline provides problem employees an opportunity to improve their performance or modify their behavior before more severe forms of discipline are imposed.
Even more significantly, for purposes of avoiding employee lawsuits or prevailing if a suit is filed, is the impression of fairness created by a carefully followed sequence of progressive discipline. No matter what the law states, when the case is reviewed by a judge, a jury, an unemployment hearings officer or a labor arbitrator, the finder of fact inevitably will measure the reasonability of the employer's conduct according to their own sense of fairness.
A progressive discipline sequence provides for specified discipline along a defined continuum. For example, the first infraction may result in informal counseling, with the second resulting in an oral warning, the third in a written warning, the fourth in a one-day suspension, and the fifth in a three-day suspension with a probationary period or last chance agreement. Last chance agreements are an effective disciplinary tool in instances of serious misconduct where mitigating circumstances may exist, such as a long-term and solid performer appearing for work under the influence, using alcohol on company property or in conjunction with participation in an employee assistance program (EAP).
It is important that management expressly reserve the right to apply termination or any other form of discipline out of sequence dependent upon the employer's determination of the seriousness of the offense tempered against the employee's length of service and record of performance. Obviously, there are some instances of egregious misconduct where termination is necessary to respond to a first offense, i.e., assaulting a coworker or using illegal drugs on company property.
Progressive discipline systems, as appealing as they are, do have inherent pitfalls. Employers may create more problems than they solve if they establish and publish a progressive disciplinary policy and fail to adhere to it. A common example of this is where a supervisor does not record minor infractions and then imposes a suspension or termination for the first recorded instance of a series of misconduct. This creates an appearance of sudden and serious discipline for a first offense when, in fact, many instances of undocumented misconduct existed over a period of time.
Additionally, where misconduct is ignored for a very long period and progressive discipline leading to discharge is employed over a very short period of time, there is an appearance that the employer was simply creating a paper trail to substantiate an arbitrary or unlawful discharge. To work effectively, the progressive discipline system must be applied in an even-handed manner so that the system is not only fair in practice but appears to be fundamentally fair to employees and any potential outside observer. In this way, employers may decrease those instances where progressive discipline can make problems worse by making the employee feel that he or she is being "singled out," "picked on," or "hassled" by his or her supervisor.
Finally, progressive discipline is probably inappropriate in most instances of poor performance. A more suitable approach in instances of performance problems should involve counseling in conjunction with an employer's appraisal process. In this way, an employer can try to improve the employee's performance while also using a "probationary" period where the employee and supervisor sit down on a weekly, bi-weekly or other regular basis to assess performance issues.
Thomas H. Somers is an attorney with the Portland law firm of Moon, Moss, McGill & Bachelder, P.A., which represents public and private employers.