By Steve M. Cohen bio
As a law firm member, you’re no doubt familiar with due process. You should also remember that it is involved deeply with employee relations, including issues up to and including termination.
As in baseball, your office can also involve a three-strike situation. What’s important for you to know is that ultimately the umpire is the Department of Labor, and their regulations follow a three-strike rule.
If an employee is not performing, the DOL expects the employer to advise that employee regarding the problem, tell him or her how to fix it, document it and provide a reasonable amount of time to demonstrate that corrective action has occurred. The corrective action and documentation part is called due process.
A warning
The first time a manager addresses a matter with an employee is called an oral warning. Under the law, an oral warning is not considered discipline. It does not need to be written down (documented) and/or formally placed in the employee’s permanent record. If the employee satisfactorily corrects the matter, the matter is closed and that is that—work life goes on.
Strike one
If the employee has not successfully corrected the matter and the manager or immediate supervisor chooses to revisit it, the employer is now entering or engaging in disciplinary action. At this step in the process, there is a need to document the situation or matter in the employee’s permanent file. If it is not documented, then as far as the DOL is concerned, it did not happen. This is called a written warning and is the first formal step of discipline in the corrective action process. The longer, more appropriate way to describe this is that it is a written documentation of a written warning
Strike two
If this has occurred and the employee is still not performing, the law expects the manager to try again. By law, the manager is expected to again tell the employee what is wrong, how to fix it, document it, and give time to demonstrate that it has been fixed.
Strike three
If, after this second attempt, the employee continues to fail, the employer is within his or her rights to terminate the employee. That termination should prevail and be upheld even if the terminated employee exercises his or her recourse options and files action against the employer.
A safety net for both employee and employer
This is clearly a three-tiered safety net for the employee as there are chances to fix the problem and documented, specific instruction as to how to fix it, expectations and a timeline provided as an indisputable guide to success and keeping his or her job. It could also be viewed as a safety net for the employer as it can counter a possible snap-judgment decision and/or help solve a problem created, not by intent, but by misunderstanding or a need for more training. A problem could hide a potentially excellent employee given time and assistance. If not, the employer has covered his or her bases when termination results.
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