A progressive discipline policy (PDP) requires employers to provide multiple warnings before disciplining an employee, and the severity of the penalty increases with each employee infraction. While there can be many advantages to a PDP, those advantages are often lost in the execution. In a perfect world, managers involve human resources (HR) at the very beginning, so HR can guide the manager to a decision that is policy-compliant. But let’s face it. We don’t live in a perfect world. We see cases all the time where a frustrated manager has given some employee the heave-ho but only then calls HR as a courtesy to let them know it happened. This “shoot first, ask questions later” approach often leads to a bad day at the courthouse for employers. For those employers whose HR departments typically only hear of employment issues after an adverse employment action is done, this article is for you.
Employment lawsuits usually involve the question of “pretext.” Did the employer really fire the employee for the reasons it stated or was something else more sinister at play? In disparate discipline cases, the first thing the employee’s lawyer wants to see is a PDP because they know about our imperfect world. “If I can find a situation where another employee did this and was not fired, I’ve got pretext for sure,” they’ll say. But being forewarned is being forearmed, especially in this new remote working world. Thanks to COVID-19, many workers are relegated to home offices, kitchen tables and spare bedrooms, leaving HR to sometimes discipline employees while lacking the available evidence that comes from the keycards, cameras and numerous eyewitnesses that communal workspaces generally provide. Now’s the time for employers to revisit their PDP’s, because the proper magic words might just be the prophylactic facemask employers in the Fifth Circuit can use during these uncertain “Covidy” times.
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