November 2022 Newsletter

Immediate Termination vs. Progressive Discipline 

While grounds for immediate dismissal vary from employer to employer, violations of certain policies can lead to an employee's quick exit from most companies.  For example, violations of anti-discrimination, anti-harassment and anti-retaliation policies may justify immediate termination following an investigation.  In addition, violations of an employer's confidentiality policy, code of conduct, conflicts-of-interest policy, workplace safety policy and workplace violence policy may also warrant immediate termination.  Violations of these policies, if sufficiently egregious, may create potentially substantial legal exposure for the employer.  Such violations also may pose a risk of potentially serious physical and emotional harm to employees.  Addressing these situations on a case-by-case basis, with prompt and thorough investigation, rather than adopting blanket, zero-tolerance policies is recommended. With substantiation of the conduct having occurred, some other examples of misconduct that might justify immediate termination include possession of weapons in violation of company policy, falsification or destruction of company records, use of illegal drugs while working, clear violations of the law, and a manager's retaliation against an employee who made an internal complaint. Whether circumstances justify immediate termination can also depend on the specific workplace and industry.  Some violations are more important at some organizations than others. Employers should also account for regulations and standards of conduct applicable to specific professions, which may include heightened safety standards, duties of care for health care providers and licensing requirements. 

Progressive Discipline

To the extent progressive discipline is fundamentally about improving employee job performance, some examples where progressive discipline might be preferable to termination include:

  • Poor attitude.
  • Attendance violations.
  • Job performance that could be improved with additional training.
  • Inappropriate behavior that might have violated the company's equal employment opportunity (EEO) policy.
  • Not properly recording time worked.
  • Less serious safety infractions.

 While immediate terminations for poor performance are less common, they may be warranted in extreme cases.  For example, if an employee performs job duties in a grossly negligent manner that results in damage to property, injury to co-workers or legal exposure for the employer, immediate termination may be appropriate.Also, if a new employee's poor performance indicates that the worker lacks the basic skills or experience necessary to perform essential job functions, suggesting that the employee falsified their credentials during the hiring process, immediate termination may be appropriate.

 Steps to Take During Termination

Sometimes immediate termination is necessary, particularly in situations involving a risk of workplace violence.  Employers should be sure that they leave themselves sufficient discretion when drafting their discipline and termination policies.  Situations will inevitably arise that will require employer flexibility and adaptability. Employers with overly rigid policies may create more problems for themselves than they solve. Employers should ask the following questions, even in cases justifying immediate termination: 

  • Have there been similar violations in the past? How have they been dealt with? How is the current situation similar or different? Are the employees similarly situated?
  • Has the employee recently engaged in legally protected activity?  For example, has the employee recently made a complaint regarding harassment in the workplace?
  • Are enhanced security measures, such as having additional security staff ready to intervene, in place if the termination is for a reason raising the possibility of workplace violence?
  • Will the employee's access to all confidential information and electronic resources be cut off as soon as the termination occurs?

 If a situation like this arises and you have questions regarding termination or progressive discipline, please feel free to contact our office at (615) 446-3303.

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