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Discipline / Investigations

Audit disciplinary records to ensure protected employees aren’t being unfairly punished


Do you know for sure that your supervisors equally punish em­­­­ployees who break the same workplace rules? If not, it’s time to conduct an internal audit. Check disciplinary records against your employees’ protected characteristics.

Discipline OK even if employee has complained

Courts are consistently hesitant to second-guess well-founded employment decisions. Of course, they won’t let you get away with discriminating or retaliating against an employee for filing an EEOC complaint or lawsuit. But that doesn’t mean you can’t discipline an employee if she needs prodding to meet your legitimate expectations.

Add credibility to your investigations: Have employee sign off on your notes

If you interview employees during the course of misconduct investigations, make sure to take accurate notes. Then, before concluding the interview, have the employee read and sign the notes, attesting that they accurately reflect what was said.

Last-chance agreement can head off discrimination suit

An employee you’re about to fire says he’s being discriminated against. If you think he’ll sue if you terminate him, consider offering him a last-chance agreement—all he has to do is promise not to sue for discrimination.

‘Keep this private’ may be unlawful request during internal investigations


When investigating claims of harassment or misconduct, it’s common to ask employees whom you interview to “keep this information confidential.” But a new ruling from the NLRB says that such a blanket confidentiality rule violates employees’ legal rights unless “legitimate and substantial justification exists” for the rule.

Court loses patience with frivolous lawsuits

Do you have an employee who’s threatening to sue if you discipline him? Don’t let that prevent legitimate discipline.

Beat retaliation suit with good HR records


Employees who suspect they are facing discipline sometimes think they can stop the process by complaining about some form of alleged discrimination. At the very least, they reason, they can claim they suffered retaliation for reporting discrimination. Smart employers keep careful rec­­ords showing the internal timeline for all employment decisions.

Same offense, same discipline? Not necessarily


You’re probably aware that, generally, you should issue the same discipline to everyone who breaks the same rule. But that isn’t always the case. As long as you can explain why one employee deserved harsher punishment, a judge probably won’t second-guess you.

Keep careful HR records to demonstrate solid processes–and catch employee’s lie

If an eventual lawsuit alleges that an employee submitted a form or sent a letter containing specific information, good records will make it easier to counter that claim. You’ll be able to tell the court about your process and then ask for an expert analysis of the document.

It’s all hilarious … until someone sues

You know the gags: Post-it notes labeling everything in Greg’s cubicle. Duct-taping Stacey’s office door. Photoshopping Dave’s picture on a photo of a Sumo wrestler. But what should you do when the jokes go too far?