Essential Questions for Justifying Disciplinary Action and Firing an Employee

Brett A. Holubeck | Fisher & Phillips LLP

Brett takes a practical approach to counsel and defends businesses and individuals in employment law issues and disputes. He knows that good preventative measures are crucial to avoiding litigation and improving performance and employee morale. Brett advises employee handbooks, drafts employment agreements, helps ensure compliant policies, and understands the importance of having the right policies and practices in place. He has handled wage and hour, employee leave, noncompete, and labor relations matters, as well as represented companies before the NLRB. Finally, Brett runs his own blog, texaslaborlawblog.com covering various employment and labor law issues.

Emma Brockway | Fisher & Phillips LLP

Emma Brockway represents a variety of clients in workplace disputes. Her primary practice includes defending employers against allegations of discrimination, harassment, retaliation, and wrongful termination. Emma also assists the firm’s Workplace Investigations Practice Group with conducting workplace investigations related to allegations of discrimination, harassment, retaliation, fraud, and other prohibited conduct. Prior to joining Fisher Phillips, Emma was an associate at a multi-practice law firm in Houston, Texas, where she focused on employment litigation, civil rights matters, and general personal injury lawsuits. During law school, Emma interned for the Honorable Nancy Johnson of the United States District Court for the Southern District of Texas. Emma also interned at the University of Houston System Office of the General Counsel.

I. Setting the Foundation for Fair Discipline and Termination | 1:00pm – 2:00pm

• Was the rule or policy violated known to the employee?
  • Ensuring employees understand workplace rules and expectations
  • The role of effective communication and training in policy awareness
  • Legal implications of unclear or uncommunicated policies
• Where is the policy located? How did the employee receive the policy?
  • Distribution methods: Digital vs. printed handbooks
  • Best practices for ensuring employees have access to policies
  • Proper documentation of policy delivery and acknowledgment
• Was this employee’s first violation or were there previous violations?
  • The importance of tracking violations over time
  • Addressing first-time offenses vs. repeated issues
  • How past behavior impacts disciplinary decisions
• Progressive discipline for routine workplace violations
  • Why progressive discipline is essential for addressing repeated offenses (e.g., attendance, minor infractions)
  • Structuring progressive discipline to ensure fairness and consistency
  • Legal considerations in applying progressive discipline

Break | 2:00pm – 2:10pm

II. Advanced Considerations in Employee Discipline and Termination | 2:10pm – 3:10pm

• Tailored responses to sensitive issues (sexual harassment, discrimination, etc.)
  • Legal and ethical considerations for serious violations
  • How to approach workplace issues that require special handling
  • When to escalate and involve legal counsel in sensitive cases
• Is there written documentation to support the discipline?
  • Importance of thorough documentation for each violation and corrective action
  • Key elements of a strong disciplinary record
  • Protecting against claims of discrimination or wrongful termination through proper record-keeping
• Monitoring and adjusting after disciplinary action
  • Tracking post-discipline behavior: Shift changes, department reassignment, etc.
  • When and how to modify disciplinary actions based on employee response
  • Ensuring consistency and fairness in follow-up actions
• Final considerations: Termination decisions and legal compliance
  • How to assess whether termination is necessary for a violation
  • Legal considerations in termination decisions: Avoiding discrimination or retaliation claims
  • Ensuring consistency in applying policies across employees
  • The importance of consulting legal counsel when facing complex or high-risk situations