Adentist was a disciplinarian when it came to managing staff. When a staff person’s work performance did not meet his expectations, he would unhesitatingly use various forms of discipline in an effort to improve the situation. His turnover was exceptionally high and the adverse economic impact on his “bottom line” was staggering.
There are two basic approaches to disciplining and managing staff. One is a traditional approach of increasing penalties, commonly referred to as “progressive discipline.” The premise is that if an employer uses progressively severe levels of discipline, the staff will become progressively better.
The other approach is the “affirmative approach.” The affirmative approach is based on the employee’s commitment to conscientiously agree to abide by various rules of conduct as defined in a Personnel Policy Manual, and to accept the responsibilities of the job.
The progressive discipline approach does not typically focus on an employee’s positive commitment to the job, and often can be demoralizing and devaluing. Also, if you state or imply that you will follow a progressive disciplinary process before an employee is terminated, then you effectively negate “at-will” employment policies. Progressive discipline, as evidenced by the above case, contributes to high turnover, resulting in higher staff-related costs and a negative impact on the bottom line.
As a result of examples like this and personal experiences, many employers recognize the ineffectiveness of the progressive discipline approach and now use the affirmative approach. The affirmative approach eliminates elements of punishment and replaces them with an affirmation of responsibility and commitment. Employees are asked to adhere to certain standards as a condition of employment. The employees alone are responsible for their behavior and the consequences.
Since your written record of discipline documents the legitimacy of a termination, make sure it cannot be compromised through the following analysis:
➥Is the action consistent with office policies and procedures? Review all written documents you use for guidance in determining how personnel actions will be handled. Have you imposed any restrictions on your right to terminate?
➥Have any oral or written commitments been made to the employee that would undermine the prerogatives established in the policy? Review letters of employment and statements on application forms. Make sure that statements have not been made to employees regarding the permanency or security of their employment.
➥Is the disciplinary action consistent with how similar matters were handled in the past? Under similar circumstances, have employees been treated reasonably consistently and fairly?
➥Are there any state or federal laws which need to be considered that might establish otherwise unanticipated protections for the employee? This may involve workers’ compensation claims, disabilities, “whistle-blowing,” or protected classes like race, color, national origin, religion, age, or sex.
If employees do not live up to their commitment, ask: “Do you want to continue your employment here?” If the answer is “yes,” the employee should be asked to sign a statement containing the following four elements - (a) Recognition of the standard of conduct and an agreement that a violation has occurred; (b) A statement of desire to remain employed; (c) Reaffirmation of acceptance and commitment, and; (d) Recognition that the same or another similar violation constitutes a lack of desire to remain employed and may result in dismissal. (Ask about our Employee Counseling Memo, Form #418.)
Employer and employee then sign the statement, a copy is given to the employee, and the original is retained in the employee’s personnel file.
If you later determine the problem(s) have not been corrected, you will want to act immediately. At the employer’s discretion, the employee may be suspended from duty without pay or discharged from employment. Caution: Although employment is “at-will,” that does not mean an employee can be discharged at-will if the termination might otherwise be deemed discriminatory or retaliatory. Before any discharge, you may want to seek legal counsel or call our office before proceeding.
The need to take disciplinary action at some time is almost inevitable. Perform the recommended analysis to ensure the action you take will be affirmed if it is challenged. If you try to salvage a productive and reasonably positive working relationship while imposing discipline, the affirmative approach can be a valuable tool in achieving this goal.
Bent Ericksen is the founder and Tim Twigg is the president of Bent Ericksen and Associates. For more than 25 years, the company has been a leading authority in human resources and personnel issues, helping dentists successfully deal with the ever-changing and complex labor laws. Both authors are members of the Academy of Dental Management Consultants. To receive a complimentary copy of the company’s quarterly newsletter or to learn more, contact them at (800) 679-2760, or at www.bentericksen.com.