Combatting the Risks of Departing Employees Part Eight: Progressive Discipline (Authored by Greg S. Magarian | Bar Results Pending | Faruki PLL)

policies-procedures_employment_gmagarianAs part of the Faruki PLL blog series on combatting the risks of departing employees, this Post discusses the benefits of progressive discipline and outlines some best practices for employers who wish to enact a progressive discipline policy in the workplace.

Progressive Discipline

Progressive discipline is a multi-step disciplinary system where employers use different methods or levels of discipline depending on the nature and severity of employee misconduct.  For example, isolated instances of tardiness often do not warrant immediate termination from the company – a verbal warning is usually a more appropriate first response.  However, if the employee does not correct their behavior and continues to arrive at work after their scheduled start time, an employer can progress to a higher level of discipline, such as a written warning.  Think of this as a sort of "three strikes" approach; except there may be more than three strikes, and each strike may not carry the same weight.

The ultimate goal of progressive discipline is to help employees correct conduct problems and resolve performance issues early.  Rather than simply punishing employees, the goal should be to fix problem behavior. Personal communication will help build trust and goodwill between employees and management to help employees grow and thrive.

Keep in mind, there is no "one-size-fits-all" approach to designing a progressive discipline policy.  Employers should work with their human resources department or counsel to tailor their disciplinary procedures to best fit with their unique workplaces.  For example, one potential approach to a progressive discipline policy could be:

Step One:  Verbal Warning

Step Two:  Written Warning

Step Three:  Performance Improvement Plan

Step Four:  Suspension

Step Five:  Termination

When to Use Progressive Discipline

Progressive Discipline is a way for employers to correct problematic behavior while also demonstrating commitment to their employees.  However, incorporating progressive discipline into company policies does not mean employers are left with no flexibility.  Employers should assess each situation on a case-by-case basis to determine the best response.  For example, for situations when the physical health and safety of employees is involved, it may be necessary to begin the disciplinary process with a more advanced step.  Any progressive discipline policy should clearly state that employers are free to deviate from the list depending on the nature of the problem, but that reason for deviation must be clearly documented.

Employers should be mindful that using progressive discipline is not simply a way to start a paper trail for an eventual termination.  This can signal to employees that they cannot rely on their employer for help.  Even if progressive discipline ultimately results in an employee's termination, the process should not simply be a way to check the boxes.  The goal should be to encourage growth and improvement.

Still, there may be times when employee misconduct warrants immediate termination.  For example, some employers may have zero-tolerance policies for dishonest behavior, sexual harassment, or physical violence in the workplace.  In order to maintain the flexibility to respond appropriately to such violations, employers should ensure their policies clearly describe which behaviors are considered gross misconduct and the available methods of discipline for such gross misconduct.

Benefits Progressive Discipline

Readers of the Faruki PLL blog have already been introduced to at-will employment.  Part One of this blog series discussed how, in Ohio and in many other states, an employer can terminate an employee at any time and for any reason (or no reason at all), subject to a few exceptions.  However, despite this flexibility, employers in Ohio are still at risk of defending against lawsuits for wrongful termination, retaliation, discrimination, or a violation of federal, state, and local equal employment opportunity laws.

As discussed earlier in this Post, progressive discipline is not simply a way to create a paper trail for an eventual termination.  However, employers who keep accurate records and carefully document reasons for termination may have an easier time justifying adverse employment actions.  Properly implementing a progressive discipline policy and documenting the steps taken to correct an employee's behavior will be an asset to employers who find themselves defending against lawsuits by former employees.

Best Practices for Employers

Employers who wish to use progressive discipline should keep the following best practices in mind:

1.     Communication

Employers should clearly communicate disciplinary procedures to their employees.  All disciplinary procedures should be outlined in the employee handbook, which should either be provided to each employee or readily accessible to them for reference.  Additionally, employers should consider holding periodic training or information sessions to educate employees about company policies and keep them informed of any new changes.

2.     Training

Management is the employer's first line of defense.  Because the goal of progressive discipline is to correct misconduct, managers and supervisors are best positioned to influence the daily behavior of their team members.  Proper training will help managers and supervisors act in a way that benefits both the employer and the employee.  Neglecting to train managers and supervisors in company policies and procedures may expose employers to unnecessary risks when taking disciplinary actions.

3.     Apply Policies Consistently

Employers should take steps to ensure that progressive discipline is applied consistently to all employees, regardless of their position or status within the company.  This goes hand-in-hand with training. Managers and supervisors who are better trained are in a better position to act consistently across a variety of situations and prepare appropriate documentation.  Using progressive discipline in a fair and non-discriminatory way will help mitigate the risks associated with departing employees.

4.     Documentation

Employers should instruct managers and supervisors to document any and all disciplinary steps taken with employees.  Employers should work with managers and supervisors to make sure they understand how to properly document and report employee misconduct and the steps taken to correct the behavior.  In some post-termination lawsuits, employers must prove that their stated reasons for terminating an employee was not merely a pretext for some other discriminatory or retaliatory reason.  Maintaining proper records will minimize uncertainty and help protect employers as they navigate post-termination legal challenges.


Progressive discipline can benefit employers and employees alike.  When employees feel they are being treated fairly and encouraged to grow, it fosters goodwill, trust, and respect.  Additionally, a properly implemented progressive discipline policy can help mitigate the legal risk associated with departing employees.

Check back soon for more discussion of how to mitigate risks relating to departing employees.

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