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Discipline / Investigations

The details matter when documenting discipline

11/27/2012
The next time you discipline an em­­ployee, consider how his conduct compares to others who broke a similar rule. Then detail the differences if the punishment varies. That way, you can later explain why two employees violating a similar rule deserved different punishments.

Fire if necessary: Complaining about bias doesn’t earn free pass to terrorize co-workers

11/19/2012
Don’t let past discrimination complaints by an obviously troubled employee keep you from ensuring workplace safety. Even vague threats can justify firing a potentially dangerous employee. Few judges will see that as retaliation.

Track all discipline to prove you don’t discriminate when punishing employees

11/12/2012

Employee lawsuits that appear out of nowhere often involve some form of alleged discrimination against someone who believes he was disciplined more harshly than other employees. That’s one reason you should routinely track all discipline.

Audit disciplinary records to ensure protected employees aren’t being unfairly punished

11/12/2012

Do you know for sure that your supervisors equally punish em­­­­ployees who break the same workplace rules? If not, it’s time to conduct an internal audit. Check disciplinary records against your employees’ protected characteristics.

Discipline OK even if employee has complained

11/01/2012
Courts are consistently hesitant to second-guess well-founded employment decisions. Of course, they won’t let you get away with discriminating or retaliating against an employee for filing an EEOC complaint or lawsuit. But that doesn’t mean you can’t discipline an employee if she needs prodding to meet your legitimate expectations.

Add credibility to your investigations: Have employee sign off on your notes

10/30/2012
If you interview employees during the course of misconduct investigations, make sure to take accurate notes. Then, before concluding the interview, have the employee read and sign the notes, attesting that they accurately reflect what was said.

Last-chance agreement can head off discrimination suit

10/22/2012
An employee you’re about to fire says he’s being discriminated against. If you think he’ll sue if you terminate him, consider offering him a last-chance agreement—all he has to do is promise not to sue for discrimination.

‘Keep this private’ may be unlawful request during internal investigations

10/18/2012

When investigating claims of harassment or misconduct, it’s common to ask employees whom you interview to “keep this information confidential.” But a new ruling from the NLRB says that such a blanket confidentiality rule violates employees’ legal rights unless “legitimate and substantial justification exists” for the rule.

Court loses patience with frivolous lawsuits

10/15/2012
Do you have an employee who’s threatening to sue if you discipline him? Don’t let that prevent legitimate discipline.

Beat retaliation suit with good HR records

10/15/2012

Employees who suspect they are facing discipline sometimes think they can stop the process by complaining about some form of alleged discrimination. At the very least, they reason, they can claim they suffered retaliation for reporting discrimination. Smart employers keep careful rec­­ords showing the internal timeline for all employment decisions.