Archive for the ‘U.S Chamber of Commerce’ Tag

A Proactive Approach to Employee Discipline – Progressive Discipline Policy

employee disciplineIt seems logical for an employer to terminate an employee at the first sign of a performance or behavioral issue; however on the contrary an immediate termination can potentially be more costly than keeping the employee on staff. The cost to recruit, attract and select a candidate can range from $1,500 to upwards of $5,000, depending on the number of people involved in the process and their salaries. Through the implementation of a progressive discipline policy, employers can provide a structured corrective action process that seeks to proactively prevent the recurrence of undesirable behavior and/or performance issues.

A progressive discipline policy is valuable because it offers advantages for both employers and employees. From an employee perspective, the increasingly severe penalties imposed for repeated offenses allow employees an opportunity to improve their performance or behavior in each step. The existence of an adequately communicated progressive action policy keeps employees informed about where they stand in a disciplinary situation and what consequences to expect. Employees can also use the progressive discipline documentation to illustrate their improvements during performance appraisals/ reviews. Furthermore, communication among parties is enhanced because both parties are in acknowledgement of poor behavior/ performance, consequences, and tactics to improve and track progress. Employees have a chance to communicate their reasons for their performance or behavior so that both parties can reach an agreeable remedy.

Specifically for managers/ employers, the progressive discipline system is valuable due to the simplicity and consistency of the disciplinary steps. It eliminates the guesswork involved in determining when to end the employment relationship or if the final decision holds merit. Employers can use the system to improve retention by demonstrating that “good” performance/ behavior will yield positive feedback. The system also advocates documentation of each step, which allows employers to maintain personnel files that accurately reflect the employee’s job performance and work history.      

Additionally, a well – structured progressive action policy serves as a strong defense during a wrongful termination lawsuit. The consistent structure helps guide the process and ensures employees are treated fairly and in accordance with company policy. Documentation of an employee’s corrective action plan serves as evidence to prove the employer attempted to correct the problem and treat the employee fairly. If an employee files a formal complaint, lawsuit or alleges they were subjected to unfair employment practices, the employer may be able to reduce their liability for wrongful termination based on documentation outlining the employee’s inappropriate behavior or poor performance.  The U.S. Chamber of Commerce encourages the use of progressive discipline for this reason, stating that “A progressive discipline policy provides the business with a system that is fair and easily defensible against a challenge.” 

“Documentation is a fundamental step in the implementation of an effective progressive discipline policy not only because it can reduce legal and financial costs but also because it provides legitimacy to the corrective action plan. Through documentation, the employer can clearly explain the cause for the discipline and outline areas for improvement; while the employee has the opportunity to express their perspective on the issue. Documentation is that extra step that is well worth taking.” – Dana Chatelain, SPHR, Human Resource Manager of SCI Companies.   

The typical stages of progressive discipline systems are counseling, verbal warning, written warning, suspension and finally, separation/discharge (termination).

  • Stage 1: Counseling – The objective of counseling is to improve employee behavior and clarify expectations. It is a direct approach to address personal or organizational issues negatively affecting job performance or overall behavior.
  • Stage 2: Verbal Warning – This is a documented counseling conversation with an employee to specifically outline the issue, get to the root cause by providing guidelines and outlining expected improvement and consequences.
  •   Stage 3: Written Warning – This is a documented written statement that specifically outlines the recurring behavior, violation and expectations for improvement and potential consequences for recurring behavior.
  • Stage 4: Suspension: If there is no further improvement, a suspension ranging from one day to two weeks or more may be issued depending upon the seriousness of the infraction.
  •  Stage 5Separation/Discharge – Separation/Discharge, also called termination, results when the employee’s behavior has still not improved. It can also occur without prior disciplinary action in case of serious offenses (or gross misconduct) like theft of company property, assault, etc.

An overall Best Practice recommendation is to clearly document poor work performance and/or inappropriate work behaviors at each stage of the process by using standard forms. Documentation should show at one or more points during the progressive method that the employee’s position was in jeopardy if he/she did not demonstrate improvement.

Additional HR Best Practices

  • Address any violation immediately to avoid escalation of the issue.
  • Ensure an effective and fair disciplinary process by avoiding discriminatory behavior or personal bias.
  • Provide effective criticism to offenders focusing on behavior or performance issue, not on the person or personality.
  • Include all progressive discipline forms and documents in the employee’s personnel file track progress of behavior and/or performance.
  • Apply the progressive discipline steps consistently to all employees.

Delay of NLRB Poster Requirement

UPDATE: The National Labor Relations Board (NLRB) poster requirement was postponed due to a pending lawsuit challenging the legality of the new rule.

On April 17th 2012, the U.S Court of Appeals for the District of Columbia placed a temporary hold on the implementation of the NLRB poster requirement, which was slated for launch on April 30, 2012. The delay will remain in effect until the court resolves the pending appeal in NAM V NLRB. In NAM V. NLRB, the trial court affirmed the right of the NLRB to require both unionized and non-unionized employers to post the notice.

The Court of Appeal’s decision to review the case comes just days after the U.S District Court of South Carolina ruled that the NLRB lacks the authority to mandate the posting requirement because it is outside of the Board’s jurisdiction. Employers are not required to post the NLRB notice regarding employee rights to unionize under the National Labor Relations Act (NLRA) until further notice.

According to the NLRB, the intent behind implementing the poster requirement is to increase interest in union activity among employees. This new regulation presents an opportunity for employers to inform employees about their rights and strengthen their resolution process so that employees feel comfortable approaching management without third party involvement. Employers can publicly display the notice in areas visible to all employees, regardless of whether the workplace is unionized or union-free. Additionally, employers may distribute the notice through electronic channels including email, intranet postings, and internet message boards.

The notice can be posted in English and in any other languages spoken proficiently by 20% of the employee population (if employees are not fluent in English). The NLRB provides translations of the notice in the appropriate languages via the NLRB website. Copies of the notice are available online at and at the NLRB’s regional offices. The NLRB Rule considers failure to comply with this federal statue as an “unfair labor practice” and if reported, may lead to an investigation by the NLRB.

The agriculture, railroad, and airline industries  are exempt from compliance because employers of these industries are not within the jurisdiction of the NLRB. Likewise, certain small businesses also are not required to post the notice depending on the annual gross revene of  the business.

Below is a list of industries that fall in the jurisdiction of the NRLB based on the annual  gross revene of the business.


Annual  Gross Revene Amount at which Employers Become Responsible for Compliance

Amusement industry


Apartment houses, condominiums, cooperatives


Art museums, cultural centers, libraries

$1 million



Colleges, universities, other private schools

$1 million

Communications (radio, TV, cable, telephone, telegraph)


Day care centers


Gaming industry


Nursing homes, visiting nurses associations


Hospitals, blood banks, other health care facilities including doctors’ and dentists’ offices)


Hotels and motels


Instrumentalities of interstate commerce


Law firms; legal service organizations


Newspapers (with interstate contacts)


Nonprofit charitable institutions

Depends on the entity’s substantive purpose.

Office buildings; shopping centers


Private clubs


Public utilities

$250,000 or nonretail standard.



Social services organizations


Symphony orchestras

$1 million



Transit systems


Best Practices

  • Although a record of compliance is not mandatory, it is a Best Practice solution for employers to document when, where, and how the notice was posted along with a digital photograph.
  •  Employers can also request employees to sign documentation verifying the receipt of notification.
  •  Employers can discuss the notice with management to develop a strategy on how to respond to employee questions and comments about unionization.
  •  Employers can implement an open door policy to improve communication between management and employees.

Employee Rights under NLRB Rule

  • Right to form, join, or assist labor organizations.
  • Right to self-organization.
  • Right to bargain collectively through representatives of their own choosing.
  • Right to engage in other concerted activities for the purpose of collective bargaining.
  • Right to mutual aid or protection.

Employer Rights under NLRB Rule

  • Right to express feelings about Unions with employees during designated times.
  • Right to keep Union organizers off company property and forbid Union activities during paid working time.
  • Right to prohibit Unions from using e-mail to organize employees, if all personal use of e-mail is also prohibited.
  • Right to hire permanent replacements for employees who are on strike over economic issues.
 Click to download posters

Employee Rights under NLRB Rule (Size 11x 17):

Employee Rights under NLRB Rule (Size 8.5 x 11):