Employers Association of New Jersey
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Unfair Discipline in the Workplace Fuels Litigation

Jan 2008

(Livingston, NJ) Addressing disciplinary issues is a reality for most managers.

No matter what the situation, introducing discipline can be a very sensitive and stressful process that many managers deal with in only a cursory manner or avoid altogether. However, if disciplinary issues are avoided or handled poorly, very serious problems for the organization can occur, including a lawsuit filed by the aggrieved employee.

According to John Sarno, president of the Employers Association of New Jersey (EANJ) the perception of unfair discipline has increased litigation, playing a role in most wrongful termination cases.

By far, the most frequent claim is under federal and state discrimination law. But court decisions under the state’s whistleblower law has also increased legal exposure for employers.

“Both federal and NJ courts have expanded the concept of employment harm to include unfair discipline. This is causing an increase in retaliation suits,” he says.

 A survey conducted by EANJ in 2007 reported that most employers practice some form of “progressive discipline’- a step by step approach to ensure that employees are adequately warned of infractions and so that they are given an opportunity to improve. At least 3 out of 4 employers reported that the HR department trains supervisors on how to follow these procedures.

But the same survey also showed that more than one in three respondents did not think that this training actually reduced the number of employment claims. That’s a big disconnect, according to Sarno, who has trained hundreds of employers on how to administer discipline fairly.

“The biggest problem is that discipline is almost always seen as punitive, as a form of punishment. To avoid this, supervisors need people-skills but these skills are not valued under the intense pressure of the production schedule. For many employers, it’s a vicious cycle that perpetuates grudges, hard feelings and, unfortunately, lawsuits,” he says.

Experts agree that for best results over the longer term, it is preferable to view discipline as a way to correct some problem behavior or performance issue. It should be viewed as a way to develop an employee.

In the ideal situation, discipline should be kept as positive as possible and not used in a punitive or retaliatory way. Supervisors should be aware that the objective of any disciplinary action is to correct the problem, the action, or behavior, not the person.

“Most employers think that discipline is merely a procedural issue, if you follow the right procedure, it's alright. But you can follow the right procedure and still get it wrong,” Sarno says.

EANJ is a nonprofit trade association dedicated to improving employer-employee relations and facilitating the exchange of information among employers. It does not render legal services, offer legal opinion or engage in the practice of law.