Of course, we don’t have the supervisor’s side of the story, and I’m sure the company has their perspective. So even though we might not be able to address some specifics, I think this scenario raises some great questions about codes of conduct and progressive discipline.
To help us understand this matter, I asked our friend Kate Bischoff to share her knowledge. Kate is an employment attorney and HR consultant at tHRive Law & Consulting LLC. She’s shared her experience with us before
YES! Employers need a code of conduct. It doesn’t even need to be called a code of conduct. That said, employers need to set expectations by outlining their standards of respect, attendance, and dress code as well as prohibitions against harassment and discrimination. Some employers may have additional policies or language for their industry or business.
Also, do not have a list of all the things employees could do to get in trouble. Employees are a creative lot. They will find umpteen ways to get in trouble. Instead, employers should include language like “We expect employees use good judgment in all situations.” While this is a wholehearted steal from Nordstrom’s, it is not wrong. If an employer says that it expects good judgment and an employee does something stupid, you should discipline even though the stupid wasn’t in your handbook. A policy prohibiting stupid isn’t a prerequisite to discipline.
Absent a collective bargaining agreement with a union, employers have discretion to determine what discipline to give to an employee for any infraction. That said, employers should operate with a sense of fairness. Here are questions the employer should be able to answer when determining the appropriate discipline.
Has a written warning been issued for a uniform violation before?
Would a written warning get the employee to comply in the future?
Would a written warning set the right tone in line with the company’s culture?
There are many different levels of discipline. Even in nonunion workplaces, employees expect that employers will use progressive discipline, discipline that starts mild and ends severe – verbal warning, written warning, (maybe) suspension, and finally, termination. Depending on the misconduct, employers can then escalate to the appropriate level when the misconduct is repeated. However, the more severe the infraction, the more severe the discipline. If an employee is tardy three times, a verbal warning may be appropriate. If an employee steals a company car, the employee should be fired.
Employers have the discretion to select whatever discipline they deem fitting. When determining the right level of discipline, employers should consider other discipline given to the employee, what has been done in the past, and what level would stop the misconduct going forward.