Texas Lawyer magazine has published an article on progressive disciplinary policies by Hicks Thomas attorneys Stewart Hoffer, Kasi Chadwick and Miranda Granchi. In the article, “Remote Work & Progressive Disciplinary Policies: How Employers Can Stay Ahead of the Game”(subscription required), the three experienced employment law attorneys discuss the importance of executing a progressive discipline policy correctly and warn that not doing so could land an employer in court.
A progressive discipline policy (PDP) requires employers to provide multiple warnings before disciplining an employee, with the severity of the penalty increasing with each employee infraction. But in the age of COVID-19, when more and more employees are working remotely, employers may be forced to discipline employees without the available evidence that could come from keycards, cameras or eyewitnesses.
Hoffer, Chadwick and Granchi advise employers to review their PDPs closely to determine whether they are inflexible or poorly worded. “Now’s the time for employers to revisit their PDP’s, because the proper magic words might just be the prophylactic facemask employers in the Fifth Circuit can use during these uncertain ‘Covidy’ times,” they write.
The best solution: PDPs that provide managers greater latitude in handling disciplinary actions, as proven in Park v. Direct Energy, where the policy gave supervisors the discretion to “combine or skip steps” in the policy depending on the situation.
Hoffer, Chadwick and Granchi advise that it is worth considering whether a PDP should include language that allows employers to combine or skip steps in the disciplinary process based on specific circumstances.
“While having a non-discretionary disciplinary policy that is followed to the letter is the best course, it is unrealistic to expect perfection in an imperfect setting,” they write.
Stewart Hoffer is Board Certified in Civil Trial Law by the Texas Board of Legal Specialization. He is AV-rated by Martindale-Hubbell peer rating organization and has been recognized by Texas Super Lawyers. Mr. Hoffer can be reached at firstname.lastname@example.org.
Kasi Chadwick advises businesses of all sizes in employment law litigation and helps employers handle business-related disputes. She has been recognized by Texas Super Lawyers and Best Lawyers in America: Ones to Watch and is a Texas Bar Foundation Fellow, a Member of the Texas Bar College, and a Houston Young Lawyers Association Fellow. Ms. Chadwick can be reached at email@example.com.
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