What is an appropriate disciplinary time window?

First, realize that ''stay clean'' time windows are a matter of company preference and past practice. Progressive discipline shouldn't be looked at as a ''formality'' that companies have to go through before they're free to terminate someone for cause. On the other hand, it would be naive to think that all situations will improve once managers provide dedicated attention to their underperforming employees via the progressive discipline process. Therefore, documenting the expected time frames for performance improvement becomes a critical part of all written warnings.

Be reasonable. Certain consequences should have no time limits. An employee who engages in behavior that could be construed as harassing or discriminating, for example, may not be ready for termination in your opinion. However, you'll want to send a strong message that such behavior will not be tolerated in the future and that any additional incidents could result in termination:

John, if you ever again engage in conduct with a coworker, supervisor, or customer that could be considered hostile, offensive, or antagonistic, you may be immediately discharged.

Mary, if you ever again loudly and publicly reprimand your secretary or other subordinates, if you use profane language in the workplace, or if you demonstrate behavior that could be construed as condescending or stripping individuals of their dignity, you will be immediately terminated.

Remember that open-ended consequences typically allow you to retain maximum flexibility. Rather than placing time windows around an employee s ''stay clean period, simply document the expected consequences this way:

Jim, failure to demonstrate immediate and sustained improvement may result in further disciplinary action up to and including dismissal.

Such language is recommended at the conclusion of all documented warnings because it provides you with the most discretion on a go-forward basis.

Many companies still adhere to the ''calendar approach to progressive discipline. There s certainly nothing wrong with this style; however, many employers fear that workers will stay clean only long enough to get through the probation period—only to commit the same errors once the probationary window has expired.

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Since this calendar approach is so common, let s look at how it works. Employers who use disciplinary time windows typically dole out ''stay clean periods in thirty-, sixty-, and ninety-day increments. Ninety days is normally the maximum for most performance and attendance related problems; most courts would consider ''stay clean periods for longer than that to be onerous.

Thirty days: To closely monitor a poor performer's work, use a short window such as thirty days. If the individual is having difficulty performing the essential functions of the job, that should be enough time to observe results. Shop floor workers, administrative support staff, and customer service representatives typically fall under this category.

Sixty days: Salespeople in many professions who aren't meeting benchmark performance standards typically get sixty-day windows. It takes about that long to make a sale, close the deal, and wait for the receivables to cash in.

Ninety days: To keep employees clean for the longest period of time (for example, with absenteeism and tardiness problems), use a ninety-day window. Remember, you're not married to the employee for a guaranteed ninety days; if anything goes wrong within those ninety days, you can automatically move to the next step of discipline (or termination). It's just easier for employees to be on time for thirty days than it is for ninety days, so why not hold them to a higher standard?

Here's how to couch these ''calendar'' warnings to buy yourself the most discretion possible:

Janet, you are now being placed on a final ninety-day warning for tardiness. If at any time during this ninety-day period you incur two more incidents of unscheduled tardiness, you may be immediately dismissed.

By the way, if Janet survives the ninety-day window and then has two consecutive tardies a week later, you'll still retain the discretion to terminate her. Most courts and arbitrators would recognize that you're not obligated to start the entire process over again just because your employee passed some ''magic'' time limit. However, if two months go by and then Janet has two consecutive tardies, you very well might have to issue another final written warning. As with all cases of progressive discipline and termination, individual cases must be determined on their own merits. When in doubt, confer with appropriate legal counsel to review the specifics of your case.