Consider these 4 things before disciplining that employee
While many managers might feel uncomfortable disciplining employees, most understand it to be necessary in the business world. Employees must be held accountable for a certain level of performance and appropriate behavior. Courts may, however, place the burden of proof on employers to demonstrate that they acted fairly in handing out discipline to their employees. This is not always an easy task.
First, employers (and managers) must ensure that they are not disciplining employees for actions that are protected by law. From there, they must further ensure that the discipline is not (and will not be perceived by a court as being) retaliatory or discriminatory in nature. Four frequently asked questions can help paint a clearer picture.
May we discipline an employee for:
• discussing wages with other
employees? Many employers would rather employees not discuss their wages with other employees, and some employers might even have established policies to bar such conversations. While this might seem like a relatively harmless directive, it may actually violate the National Labor Relations Act (NLRA). Under the NLRA, employees have the right to discuss terms and conditions of employment, which include wages with other employees, since wages are part of working conditions. Therefore, disciplining
an employee for discussing wages would be illegal under the NLRA.
• excessive absences even when some are protected under the Family Medical Leave Act
(FMLA)? The FMLA does not govern how employers enforce their non-FMLA leave policies, including applying discipline regarding those types of leaves. If, however, an employee’s leave is protected by the FMLA, applying discipline based on that time would violate the law and risk an interference or retaliation claim.
• working unauthorized overtime?
Employers may have a policy prohibiting unauthorized overtime and disciplining employees who work overtime without approval to discourage them from doing so in the future. Some employers, however, wish to discipline employees who work unapproved overtime by not paying them at an overtime rate (or not pay them at all for the overtime hours), which would risk a claim under the Fair Labor Standards Act. Whether disciplined or not, employees who work overtime must be paid for overtime when it is worked.
• not undergoing a drug test after any workplace accident? OSHA prohibits employers from using drug testing, or the threat of drug testing, to retaliate against an employee for reporting an injury or illness. Employers may conduct post-incident drug testing only if there is a reasonable possibility that employee drug use could have contributed to the reported injury or illness. Otherwise, drug testing could constitute prohibited retaliation. That means blanket post-accident testing policies will usually be problematic.
Darlene M. Clabault is a certified professional in human resources and a senior editor at J. J. Keller & Associates, a nationally recognized compliance resource company. Clabault specializes in topics such as the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and the Affordable Care Act (ACA). She is the author of J. J. Keller’s FMLA Essentials and ADA Essentials guidance manuals, and a content resource for training, program administration services, and online management tools.