Disciplinary overreactions are like land mines for employers. If you ever need to terminate an employee for cause, be warned: a single slip can blow up your whole case.

Disciplinary overreactions are can be tough for employers to avoid, especially dealing with new kinds of misconduct. Employers need to be tough but fair, unforgiving but lenient, cold but kind. If that sounds contradictory, that’s because it is – discipline is a delicate balancing act. While a zero-tolerance approach can leave you neck-deep in litigation (and sometimes, union drives), an overly lax approach condones the misconduct. The trick is not to swing too far in either direction.

Here are 8 common disciplinary overreactions that we see from employers:

1. Discipline without an investigation

As a general rule, do not  discipline without a fair investigation; Plaintiff-side employment lawyers feast on procedural unfairness, actual or perceived. However, fairness does not necessarily require a long, involved, or expensive investigation. What it does usually require is an examination of the facts, questioning the accused, and notes to back up conclusions. As an added bonus, an early and thorough investigation “locks in” the facts at an early stage.

2. Investigations without discipline

Excessive leniency is also a disciplinary overreaction. If your investigation reveals that someone is at fault, it is important to issue formal discipline. Specifically, formal discipline must be in writing, and include a warning that if the conduct continues, the employee will be fired for cause. In short, if it’s not in writing, it never happened.

3. One-sided or biased investigations

A common disciplinary overreaction is to “freeze out” an employee who is under investigation by interviewing the accused employee last, or sometimes, not at all. But if that’s your company’s approach, you might as well not investigate.

There are four good reasons to always interview the accused at an early stage in the investigation. First, the accused employee may admit to wrongdoing at the outset. Second, a fair investigation will actually delve into the accused employee’s version of events to see if it can be corroborated. Third, a fair investigation will not coddle the accused employee or dismiss complaints against them out of hand. Fourth, an early interview with the accused will “lock in” his or her version of events, before all of the evidence has been uncovered in the investigation.

4. Immunity for whistleblowers

Some employers have policies which guarantee disciplinary immunity to whistleblowing employees. Thus, the argument goes, employees are encouraged to report misconduct. However, such a policy invariably produces some unintended consequences – namely, disciplinary immunity form serious wrongdoing. A better policy protects employees against retaliation for reporting misconduct, while preventing bad apples from gaming the system by self-reporting.

5. Firing for cause too easily

Most terminations are “without cause” in the legal sense, unless the employee has received several written warnings or committed extreme misconduct, like embezzlement or assault. Firing for cause where none exists is a classic disciplinary overreaction. Doing so can invite a serious legal battle, extended wrongful dismissal damages, and even damages for bad faith or unfair dealing. One court found that the employer “got mean and cheap“, awarding the dismissed employee $100,000 in punitive damages.

6. Letting repeat offenders slide

Some employers make the mistake of repeatedly giving the same discipline, for the same misconduct, by the same employee. That is a classic disciplinary overreaction.

The one-size-fits-all approach to discipline destroys the employer’s credibility like the boy who cried wolf. A better disciplinary strategy responds to repeated misconduct with increasing levels of discipline, up to termination for cause. This technique is called “progressive discipline”.

7. Giving reasons for termination without cause

Recognize when discipline stops being useful. Unless you’re terminating for cause, avoid giving reasons to the employee. Giving reasons for the termination does nothing to reduce liability. In fact, it will often elicit an emotional and/or litigious response from the terminated employee.

8. Never firing for cause

While just cause for termination may be rare, sometimes it’s the right thing to do. In the right case, firing for cause can save the company money and set an example for other employees.

In all cases, get experienced legal advice before asserting just cause. Contact Hyde HR Law today for a consultation.