Discipline Criteria For The Singled Out Employee

Scales of Justice
Scales of Justice

Are You Informed?

In most jobs, there exists a set of basic rules which all employees are informed of either at the onset of their employment, or during daily, weekly or monthly meetings.

When an employer attempts to take a disciplinary action against an employee, there are several things to consider. Bear in mind, I'm speaking of professional employers that do attempt to govern their businesses by a specific set of criteria in accordance to job laws.

You may have a self-employed boss, or even a manager in a large or small corporation that attempts to be a law unto themselves, and to discipline based on personal criteria, but that is known as discrimination.

In such cases, you may need to consult with EEO (equal employment opportunity) commission of your job (if in government); or in your county human resources dept, which would also handle EEO complaints. You could also locate and contact the NLRB (national labor relations board) in your county or state. The other alternative is consulting with a lawyer.

As a former EEO rep, my purpose in this information, is to inform you of a bit of the criteria that should be used whenever an employer is considering disciplinary action. If this criteria has not been met, then you will need to consider whether or not your employer's action against you is discriminatory, and consult the above listed agencies.

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Just Cause

The first thing an employer must have to issue discipline is "just cause." What is just cause? The definition varies from case to case, but arbitrators frequently divide the question of just cause into six sub-questions, and often apply the following criteria to determine whether the action was for just cause.

This criteria is the basic considerations that any manager must determine prior to initiating disciplinary action.

1.    Is there a rule?

If so, was the employee aware of the rule? Was the employee forewarned of the disciplinary consequences for failure to follow the rule? It is not enough to say that everyone knows this rule, or that it was posted "10" years ago. In the case of the rule being posted, it would have to be in a well lit area that employees would frequently have visual access to, and not out of sight behind some cabinet or equipment.

Additionally, if it was not a posted rule, the manager would have to have some documentation that proved that you were informed of this information, and should have known this rule.

This may include a signature from you indicating that you were present and informed during a service discussion. I used to tell employees not to sign, because the management I worked for at the post office, used this to entrap the employees.

Certain standards of conduct are normally expected in the industrial environment and it is assumed by arbitrators that employees should be aware of these standards.

For example, an employee charged with intoxication on duty, fighting on duty, pilferage, sabotage or insubordination etc; may be generally assumed to have understood that these offenses are neither condoned nor acceptable, even though management may not have issued specific regulations to that effect.

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Reasonable

2. Is the rule a reasonable rule?

Management must maintain work rules by continually updating and reviewing them to ensure that they are reasonable, based on the overall objective of safe and efficient work performance.

Management's rules are reasonably related to business efficiency, safe operation of the business, and the performance that might be expected of the employee, and this is known to the employee.

Again, I reiterate, that it must be proven that this information was known by the employee, and that that person was informed. In some cases, an employee can justify disobedience if it can be shown that to obey the order would jeopardize personal safety and integrity.

3. Is the rule consistently and equitably enforced?

If a rule is worthwhile, it is worth enforcing, but be sure that it is applied fairly and without discrimination. Consistent and equitable enforcement is a critical factor, and claiming failure in this regard is one of the most successful defenses.

For this reason, I always stressed good network of communication among employees, so that differences in treatment would be known. There have been cases overturned or reversed because the action was not enforced by this criteria.

Even when a person files for unemployment, if terminated for some form of insubordination or disciplinary infraction, the unemployment office wants to know if the employee was informed about the rule prior to the infraction.

Management would lose in a case wherein it failed to first put employees on notice of its intent to enforce a regulation that was previously being violated without enforcement. And the business would have to pay the unemployment if they failed to notify the employee first.

This would also apply to singling out employees for discipline. If several employees commit an offense, it is not equitable to discipline only one. When management maintains that certain conduct is serious enough to be grounds for discharge, it is unwise, as well as unfair to make exceptions.

In such cases, when fighting for your rights, make sure that you are aware of the procedures and time frames to file applicable forms, so that you file them within those deadlines and ensure your ability to get a resolution.

Continue to Part 2

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