Legal Ramblings

How To Legally Discipline An Employee Without Getting Into Hot Water

Running a business requires some level of discipline from both the employer and the employees. A workplace with highly disciplined personnel provides the most conducive work environment for everyone associated with a business. Among the relationships regulated by statute is the employer-employee relationship, the regulating statutes being employment laws.

Many states have in place employment laws applicable to their residents; therefore, employers need to establish laws applicable to businesses at the state and federal levels. The constant worry that most employers subsequently have is how to legally discipline an employee without getting into hot water?

One fact about an employer taking disciplinary action against an employee is that effecting discipline on an employee is not illegal unless the disciplinary measure employed violates employment laws’ provisions.

Tips on how to legally discipline an employee

1. Seek knowledge on the status of employment laws on disciplining employees
The good news about the employee disciplinary measures is that employers have the freedom of formulating rules applicable to their business. While doing so, there are statutes that employers must comply with or risk repercussions. For example, older employees fall in the protected class, guarded against discrimination on the grounds of age.

The Age Discrimination in Employment Act of 1967 outlaws any form of discrimination when employing or during the employment duration of older employees. Therefore when an employer is taking disciplinary action against an older employee, it is important to ensure that any motive that would point towards discrimination is addressed internally before any information spills out.

The Age Discrimination Act of 1975 gives provisions under section 6103(b) of actions that count as nonviolative, which, if duly followed by an employee, can guard against lawsuits arising from disciplinary measures. Understanding most employment laws require legal knowledge; therefore, an employer who seeks to understand the legality of the disciplinary measures used within their business should consult with an employment attorney for proper interpretation of the law.

2. Ensure internal rules include clauses on termination of the contract
States like Texas are employment at will states. However, to retain the best talent in a business, an employer might consider hiring some employees on a contractual basis with specific clauses governing the employment relationship. While an employer can hire and fire at will, breach of contract is a ground for instituting an employment dispute citing wrongful termination.

A good attorney can help draft an employment contract factoring in instances that warrant termination even if an employee is employed on special contract terms. Additionally, internal business laws constitute the evidence employers can rely on if an aggrieved employee decides to sue. Therefore employers need to ensure that the internal business laws have a clause on termination at will.

Before entering into an employment relationship, the internal business laws are some of the documents employees get to sign to prove they have the knowledge and are agreeable to the terms of employment engagement. Hence, they can’t claim a lack of knowledge later on. For a business to have laws clear laws that are properly worded, talk to an employment law attorney.

3. List the dos and don’ts in the business
Employers need to have definite dos and don’ts for an employer-employee relationship. Some employers use an employee handbook with a clear set of dos and don’ts within the business environment or during business transactions. Other employers prefer online platforms like an employee portal where every employee can access all work environment rules.

Some of the rules in the handbook or portal can include the following:

 Work attire
Discrimination based on dress code is not new; hence, every employer must avoid any discriminatory provisions on dress code. Some religions require their faithful to adorn specific attires at all times. Therefore it is crucial that the rules on work attire do not appear as discriminative to persons of a particular religion or background.

Most importantly, employers need to be clear on work attire expectations by stating what employees are expected to wear. If you want to dive deeper into the whole idea of “dress code” SHRM has a good overview here. We also delve much deeper into this here.

 Regulate employee behavior
The background of an employee might dictate behavior. Therefore, what might be deemed common etiquette might be foreign to an employee, creating awkward or offensive situations. Therefore employers have to regulate relationships between employer-employee, employee-employee, employee-client, employee-competitor, among many others.

Also, with technology having taken over relationships, businesses, etc., most people are mobile phone addicts. When employees spend most of the business hours browsing the internet, the business ends up being at a loss. The modern-day challenge of mobile phone addiction, even at the workplace, must be addressed.

Among the intentions of running a business is to help attain life goals, and such goals can’t be realized with a bunch of underperforming employees. Employers need to set either individual or group targets for their employees.

An employer can adopt the weekly, monthly, or quarterly target dependent on preference or the business structure. After that, conduct evaluations after lapse of each set timeline to ascertain whether the targets have been met and proceed to forge the way forward for those not met.

 Unbecoming conduct in the workplace
Drunkenness, violence, and theft are among gross misconduct behavior. As an employer, entertaining such acts can result in a bad business image. Immediate termination of employees engaging in unbecoming conduct is often acceptable even without undertaking disciplinary measures.

4. Seal every window for favoritism
Favoritism at the workplace is a possible reason for legal action. Managers are known for picking sides when effecting disciplinary measures. An aggrieved employee might take offense and take legal action against your business.

A managerial team forms a crucial part of business image, and disciplinary measures used are done on behalf of the employer pursuant to the employment relationship. While some managers are professionally trained, there are those who have grown on the job and might lack some important guidelines on proper management and, in particular effecting disciplinary measures.

Therefore an employer has an obligation to ensure the managerial team is not jeopardizing the business. Some tips employers can secure their business include:

 Hold continuous training sessions for all managers while paying attention to business disciplinary measures
 With the availability of online platforms, create a managerial portal where managers can discuss disciplinary measures and subsequently effect reviews for those that appear too lenient or strict.
 Listen to employees. Conflicts between the management and the sub-ordinates are not new, but when employees speak out about favoritism, listen. Such information might help in guarding a business against unnecessary lawsuits.
 Subject managers to disciplinary action. A manager is also an employee and can equally face disciplinary action. Therefore if a manager violates the set disciplinary guidelines, ensure they also face disciplinary action.

5. Decide on the most appropriate disciplinary measures for the business
There are various disciplinary measures employers can undertake. Employment disciplinary actions are meant to realize a result beneficial to both parties and not necessarily administer punishment. Notably, some disciplinary measures might have a financial liability on the business; therefore, when deciding the best suited disciplinary action, employers need to thoroughly consider the impact it has on the business and whether the result is worthwhile. As an employer, you can choose to use:

 The rehabilitative approach. Employees are valuable business parties; therefore, employers might want to rehabilitate them through training aimed at helping the subject employees work on their shortcomings.
 Warning and suspension, among many others.

6. Ensure adherence to set rules
With a managerial portal accessible to all the managers. As an employer, you should ensure your management team adheres to the discipline regulations and is held accountable if in violation.

If you can follow the above ideas, and most importantly, if you can be consistent in your approach to employee expectations and discipline, you will be well on your way to staying out of “hot water” when it comes to disciplining your employees. However, if you deviate from your own rules, or apply them haphazardly, you will find yourself in a world of trouble and the potential of a lawsuit.

Until next time, those are my thoughts…


Legal Ramblings

Start a Law Blog…That’s What My Son Told Me To Do

I guess now I can be a cool kid…

Longtime lawyer, technologically impaired, closer to 60 than 30….

Interesting the things I could say to describe myself. My name is John and I’ve been practicing law for longer than you’ve likely been alive. I have a wife, two grown kids, a thriving legal practice. But guess what? I’m bored to tears. The pandemic that we are currently in has turned our whole world upside down, me included.

I was speaking to my son about the boredom that has set in for me…. Endless days in the house, can’t go outside much (after all I’m in the “risky” category” due to my age and health). The worst part? I don’t really have any hobbies or interest in any hobbies. My son suggested that I start a blog discussing the law (which is something I love) and use it as an outlet to say all the things I can’t really say to partners or clients.

Since I’ve been an employment attorney for most of my adult life (save for that quick stint into personal injury….oops) I think I will write about those things that I know about. My goal here, is to share some general wisdom about some key aspects of law as it relates to employers, employees, and how to navigate this tricky employment world that we live in. After I cover some general topics, my goal, my real intention with this blog, is going to be to give you insight into the things lurking in the deep dark crevices of my brain. Those things in employment law that are “hush hush.” I’ll save those juicy details for down the road but let’s just say, I’ve always wanted to be a John Grisham type and I have the background of stories to give me inspiration.

So off we go…

I’ll start by writing some general informational stuff about employment law, discrimination, workplace harassment, diversity, and wage and hour issues. I’ll also cover a plethora of Human Resources topics since most of my time with “clients” are spent with the HR Team.

Let’s hope I don’t bore you to tears…but….I guess I’m not too concerned since my whole goal here is to just kill some boredom of my own!!

Finally, I think it’s smart if I just use my first name during this whole blog. I still have an active practice and if I finally get around to writing those “John Grisham” style stories from my past, I will want to remain anonymous. I’ll also have to change those names as well I guess.

I hope you’ll join me in this adventure!


p.s. I guess since I’m a lawyer I should also add that this is truly my “personal” blog and is not associated with my own law firm or any other law firm. These are my opinions and you should contact your own attorney before acting on any writings of this blog. Yes, I’m an attorney but I’m not YOUR attorney and you should always seek legal advice before taking any other actions in your business (especially from reading something on the internet).