Lessons from Tom Brady and Kim Jong Un – How does an employer determine the proper discipline for an employee in California? Are there any guiding principles for employee discipline?

Q.     The sporting news has been dominated by Tom Brady’s four game suspension for Deflate-Gate.[1] Also, this week there were reports out of North Korea that claimed the North Korean Defense Minister was executed for falling asleep in a meeting.[2] (Tom – you thought your punishment was harsh!) All these punishments have me thinking. What is the proper discipline for an employee? Are there any guiding principles for employee discipline?

A.     Yes – for starters Kim Jong Un’s disciplinary measures are most likely illegal in California. Additionally, there are several other principles to remember when issuing discipline to an employee. They are as follows:

  1. Consistency – To avoid claims of discrimination, it is important to discipline employees in a consistent manner. For those in the Valley, you may remember the Fresno State Women’s basketball coach who was allegedly fired for taking a player’s pain medication. Ultimately, she settled her case for millions of dollars – not because it was inappropriate for the University to terminate an employee under those circumstances, but because it was commonly perceived that Fresno State had previously given male coaches a slap on the wrist for similarly severe misconduct.
  2. Curb Future Conduct – Discipline is especially required if another employee is a victim of a co-worker’s conduct, or if there is a risk of future harm from a repeated offense. For example, when an employer finds that sexual harassment has occurred in the workplace, Courts have required that the employer’s remedial steps must be “reasonably calculated to end the current harassment and deter future harassment from the same offender or others.” (See Yamaguchi v. United States Dept of Air Force (9th Cir. 1997) 109 Fed 1475, 1483.)
  3. Increased Punishment for Repeat Offenders – If an employee repeats the offense, particularly in instances of harassment or discrimination, then the discipline must be progressive. (See Intlekofer v. Turnage (9th Cir. 1992) 973 F2d 773, 779.)
  4. Comply With Policies – Although it is generally recommended that you avoid rigid “progressive discipline” policies, if you have them, or are otherwise part of a collective bargaining agreement, you will need to comply with your own discipline policies or agreements. Be sure to check these before taking disciplinary action.
  5. The Accused Has Rights – It is important to remember that the employee being punished could sue for libel or slander. Accordingly, measures should be taken to keep discipline as confidential as possible. (See Downes v. F.A.A. (Fed.Cir. 1985) 775 F.2d 288, 294.)

Although your disciplinary actions hopefully will not be as publicized as Tom Brady’s or as severe as North Korea’s, remember there is risk in every adverse employment action. As such, remember to follow these general rules and be sure to contact your employment law attorney to review your discipline policy before an issue arises or when contemplating employee discipline.

[1] http://bleacherreport.com/articles/2461447-tom-brady-to-appeal-deflategate-suspension-latest-details-and-comments

[2] http://www.foxnews.com/world/2015/05/13/n-korea-executes-defense-chief-for-falling-asleep-during-meeting-s-korea-spy/?intcmp=latestnews

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

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