How do I 'bundle'' separate performance infractions?

It's sometimes the case that an employee's erratic behavior violates multiple company performance standards simultaneously. For example, the individual may already be on written warning for excessive absenteeism and then engage in inappropriate workplace conduct. Does the new conduct infraction warrant placing him on final written warning overall, or should you issue a separate warning for his conduct?

It depends. Some of the factors you'll need to look at include your company's past practices in handling similar incidents, the severity of the conduct infraction, and the number of incidents of unauthorized absence. Of course, the state in which your company is located will also help you determine how bold you may be in terms of taking adverse action against an employee.

Two schools of thought exist: Conservative employers and defense attorneys usually recommend treating these unrelated infractions separately. In essence, the employee would remain on written warning for absenteeism and then be given a separate written warning for inappropriate workplace conduct. On the other hand, more aggressive employers believe it is appropriate to view employee behavior in terms of responsibility rather than as isolated behavioral acts. As such, they believe that lumping all these issues together allows them the discretion to issue a final written warning for overall substandard job performance.

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''Bundling offenses'' is the term often used for this latter school of thought. Bundling allows violations that are fundamentally unrelated to be lumped together for purposes of documenting poor performance. This accumulation factor often plays an important role in justifying terminations because arbitrators generally uphold more aggressive disciplinary measures when numerous performance problems—even if unrelated—have accumulated over short periods of time. There is a sample written warning for this example in Appendix L.

How do I determine what level of progressive discipline is appropriate to the offense?

Four criteria can help you determine the most appropriate level of discipline to employ in any particular circumstance:

1. The severity of the offense

2. The employee's past performance record

3. The individual's length of service with your organization

4. Your company's past practice in dealing with similar infractions.

Follow the traditional disciplinary paradigm of:

1. Verbal warning

2. Written warning

3. Final written warning unless starting with anything less than a final written warning could make you appear irresponsible.

Courts have ruled that employers are obligated to fit the discipline to the offense. A slap on the hand isn t appropriate, for example, when egregious conduct occurs. That s why sexual harassment or discrimination findings typically start at the written or final written stages of discipline—even for a first offense.

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Conduct-related infractions typically provide employers with the most latitude in composing a company response. Take the case of employee theft or embezzlement. Such misconduct warrants immediate termination. A summary dismissal is appropriate because you can t send a message that says, We ll forgive you this time, but if you do it again, you'll be fired. On the other hand, performance- or attendance-related infractions typically require employers to provide full workplace due process in the form of written and final written warnings.

Remember, you re responsible for treating like cases alike; that doesn't mean you ll necessarily treat everyone the same way. Employee transgressions don t exist in a vacuum. Sleeping on the job, for example, may warrant a written warning for a first offense when committed by an attorney or financial analyst. That same infraction might warrant a final written warning for a head nurse in charge of a hospital s intensive care unit, because such behavior could jeopardize patient care. If committed by an anesthesiologist in the operating room during a procedure, sleeping on the job might justify a summary discharge.

As you can see, sleeping on the job isn't the only issue: The circumstances surrounding the act of sleeping on the job play a crucial role when determining available remedies to ensure that a particular behavior is not repeated. In addition, a first-time offense committed by a twenty-year employee most likely won't be treated as harshly as an offense committed by a new hire during his introductory period.

Finally, from a standpoint of fairness, realize that employees who are disciplined for inappropriate conduct or poor performance often share their concerns with their peers. It isn't uncommon for ''war stories'' to be shared, and disciplined employees learn how the company has treated others in the past who engaged in similar conduct. If your response differs greatly from and is more aggressive than your organization's past actions, realize that you'll not only have a morale problem on your hands, you may also be legally challenged to justify the apparent inconsistency of your actions. Inconsistent employment actions in and of themselves are not unlawful; however, if such perceived unfairness occurs against a member of a protected class, it could be interpreted as discrimination. Be careful to review your past practices before doling out discipline or termination. This should become a routine part of your performance management system.

 
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