1. Legal Issues: Discipline, Termination, Sexual Harassment, and Drugs
Chapter 10
Legal Issues: Discipline, Termination, Sexual Harassment, and Drugs

2. Learning Objectives
Explain the rationale behind disciplining employees.
Define employment at will.
Define wrongful discharge.
Define sexual harassment.
Describe how to handle employees suspected of drug abuse.

3. Disciplining Employees
Behavior that is disruptive to the organization’s performance must be corrected.
Dealing with such behavior is known as disciplining.

4. Rationale for Disciplining Employees
Supervisors should know how to discipline disruptive, or non productive behavior.
Otherwise the supervisor risks damaging morale, quality, productivity, and competitiveness.
This is the rationale for disciplining disruptive employees.
External discipline properly applied can lead to self discipline.
When this happens, the discipline system is a success.

5. Strategies for promoting self discipline
A properly applied discipline system can lead to a self disciplined team in which the members know the organization’s rules and regulations, abide by them, and expect co-workers to abide by them.
The key to achieving self-discipline:
1. Personalize disruptive behavior: Team members need to realize that disruptive behavior of one is detrimental to all.
2. Apply discipline in a step by step manner: A step by step discipline process that is reasonable and has built in opportunities for improvement will be well received by most employees.

6. Fundamentals of disciplining employees
1. Learn your company’s rules and regulations and commit them to memory: Supervisors cannot help enforce rules if they do not know them.
2. Get to know your employees and their personalities: One on one conferences with employees might prevent problems that would require disciplinary measures.
3. Prevent discipline problems through education: Rules should be posted, distributed and periodically discussed and the reasons for them should be emphasized. There should be no surprises in a company’s discipline program.
4. Set a positive example: If supervisors lose credibility, the discipline program loses credibility.
5. Consult the human resources department: HR personnel can be in house consultants for supervisors undertaking disciplinary measures.

7. Guidelines for disciplining employees
1. Understand your authority: Never exceed your span of authority.
2. Understand the rules and the reasons for them: Employees want reasons for the rules.
3. Communicate the rules to all employees: Post the rules, distribute them, and periodically discuss them.
4. Avoid negative comments about the rules: You must support the rules.
5. Follow the rules yourself: You should lead by example.
6. Never act on hearsay: Make sure you have the hard facts.
7. When rules are broken, act: This should be done in private.
8. Discipline at the end of the day: Disciplining at the end of the day will give the emotions time to settle down.
9. Document discipline problems and corresponding actions: For legal concerns, and also to help employees see where and when they have broken the rules.
10. Do not hold grudges: The supervisor/employee relationship should return to normal.
11. Give advance warning: There should be no surprises.
12. Discipline immediately: It must be done in a timely manner in order to work.
13. Be consistent: There should be no favoritism.
14. Be objective and professional: Focus on the behavior, not the person.

8. The discipline process
5 step approach:
1. Informal discussion/counseling.
2. Verbal warning.
3. Written warning.
4. Suspension.
5. Dismissal.

9. Verbal Warning
This is the second step - if the informal discussion does not work.
First get the facts – What rule has been broken, when, and how? Who knows about it? Were there witnesses? Who is to blame? What action does the company policy specify?
When you have all the facts, decide if a verbal warning is in order (fig 10-2, page 141). If so, have a private meeting at the end of the day:
1. Have a definite objective and share it with the employee: Let the employee know what rule has been broken, and what the consequences of future infractions will be.
2. Have supportive material on hand and readily available: What evidence you have, plus past problems.
3. Explain what rule has been broken and the reason for the rule: Keep the conversation objective, non judgmental, and professional. Give the employee to rebut evidence. If you are still convinced a verbal warning is in order, issue the warning. Document the verbal warning and ask the employee if they understand why and the consequence of further infractions.

10. Suspension
If verbal and written warnings do not work, the next step is suspension.
Before recommending suspension, ask yourself the following questions:
1. Am I overreacting?
2. Am I acting in accordance with company policy?
3. Has suspension ever been used for a similar infraction?
4. Do I have sufficient documentation to stand up to a formal challenge?
5. How will the suspension be received by the employee’s coworkers?
6. Does the human resources department agree with and support the suspension?
If you have satisfactorily answered the above questions, and the human resources department agrees that everything is in proper order, the suspension should proceed.

11. Dismissal
When all other steps have failed to change the negative behavior, termination is an appropriate action.
The term employment at will means the employee works at the will of the employer, and he has no say in the matter, and no rights or protections.
The concept of wrongful discharge, establishes that employees have rights relative to continued employment and should be protected from arbitrary and unjust termination.

12. Causes for terminating an employee
An employee can be terminated for cause:
1. Substance abuse on the job.
2. Theft of company property.
3. Fighting on the job.
4. Insubordination.
5. Sabotage.
6. Sleeping on the job.
7. Excessive absences and/or tardiness.
8. Falsification of time cards or other records.
9. Commission of a felony on or off the job.

13. Reasons that cannot be used for dismissing an employee
1. Attempting to unionize fellow employees.
2. Race, religion, gender, national origin, culture, or sexual preference.
3. Pregnancy, child birth, or related medical problems.
4. Age (if the employee is between 40 and 70 years of age).
5. Refusal to perform unsafe tasks.
6. Refusal to work in hazardous environment.
7. “Blowing the whistle” about health, safety, and environmental issues.
8. Physical or mental handicap.

14. Dismissal Interview
1. Set up a private interview with the employee but have a representative of the human resources department present. This person can serve as a witness for both the supervisor and the employee.
2. Ask the employee to explain his or her side of the problem and listen carefully.
3. Explain that based on the facts, you have decided to terminate the employee for cause. Explain the cause and present your documentation of the facts. Take full responsibility for the termination decision.
4. Inform the employee in writing the effective date of the dismissal. Be prepared for the employee to react angrily and quit on the spot. Ask him to sign a resignation letter. If he threatens to sue, make a record of his threats. If he threatens violence notify higher management and law enforcement immediately.
5. Explain or ask the human resources person to explain the details of the severance pay, vacation pay, sick leave, insurance, pensions, and other related concerns.
6. Have the employee sign any exit forms required by company policy.
7. Explain the company’s appeal process and refer the employee to the appropriate office should he wish to appeal.

15. Explaining to remaining team members
Once the termination has been accomplished, the supervisor must inform other members of the team.
An effective way to do this is to call a team meeting and announce the dismissal.
You must protect the privacy rights of the terminated employee.
Explain that the employee was terminated for continual violations after informal discussions, verbal warning, written warning, and suspension failed to correct the disruptive behavior.
Check your documentation to make sure it is available should the employee file a wrongful discharge suit.
Also check the documentation on all employees (good and bad).
Maintaining documentation on just one employee may look like personal vendetta in the eyes of the court.

16. Sexual harassment
Sexual harassment is unwelcome words, actions, or conduct of a sexual nature.
It can involve a man harassing a woman, a woman harassing a man, a woman harassing a woman, or a man harassing a man.
1. The first type is quid pro quo harassment in which sexual favors are demanded in return for job benefits.
2. The second type is condition of work harassment in which an offensive work environment is created.

17. Supervisor’s role in handling drug abuse in the workplace
1. Identify troubled or suspicious work behavior.
2. Document troubled or suspicious work behavior.
3. Question employees who display troubled or suspicious behavior.
4. Participate in after care follow up as part of the organization’s Employee Assistance Program (EAP).

18. Terms Summary Discipline process Dismissal Documentation
Employment at will
Sexual harassment
Suspension
Verbal warning
Written warning

19. Home Work Answer questions 2, 4, 8, 10, 12, 13, 14, 16, and 17.
2. What is the rationale for disciplining employees?
4. Explain how to ensure there will be no surprises when applying discipline.
8. Explain the proper way to issue a verbal warning.
10. What questions should you ask yourself before suspending an employee?
12. List 5 causes that may be given for terminating an employee.
13. List 5 reasons that cannot be used to justify dismissing an employee.
14. List and briefly explain the steps to follow in conducting a dismissal interview.
16. Define the 2 categories of sexual harassment.
17. How should a supervisor respond when an employee is suspected of drug use?