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How managers can avoid tripping on due process safety net

By Steve M. Cohen  bio

For many, spring is baseball or soccer season, a time to start getting out and enjoying life.

But in your workplace, you will also find team sports that can impact your bottom line or organizational effectiveness. If someone in your organization is not playing ball the way they should, it’s also a three-strike situation (or a red card, if you prefer soccer). What’s important for you to know is that, for your organization, the umpire is the Department of Labor, and the law also follows the three strikes rule.

If an employee is not performing, the DOL expects the employer to advise that employee regarding the problem, tell him or her how to fix it, document that communication, and then provide a reasonable amount of time to demonstrate that corrective action has occurred.

The corrective action and documentation is called due process.

The first time a manager addresses a matter with an employee is called an oral warning. Under the law, an oral warning is not considered discipline. It does not need to be written down (documented) and/or formally placed in the employee’s permanent record. If the employee satisfactorily corrects the matter, the matter is closed and that is that—work life goes on.

If the employee has not successfully corrected the matter and the manager chooses to revisit it, the employer is now entering or engaging in formal disciplinary action. At this step, there is a need to document the situation in the employee’s permanent file. If it is not documented, then as far as the DOL is concerned, it did not happen. This is called a written warning and is the first formal step of discipline in the corrective action process. Another way to describe this is that it is a written documentation of a written warning.

If this has occurred and the employee is still not performing, the law expects the manager to try again. By law, the manager is expected to again tell the employee what is wrong, how to fix it, document it, and give the employee time to demonstrate that it has been fixed. If, after this second attempt, the employee continues to fail, the employer is within his or her rights to terminate the employee. That termination will most likely prevail and be upheld, even if the terminated employee exercises his or her recourse options and files legal action against the employer.

This is clearly a three-tiered safety net for the employee. There are multiple chances to fix the problem and documented, specific instruction as to how to fix it. There are expectations and a timeline provided as an indisputable guide to success and keeping his or her job. It could also be viewed as a safety net for the employer as it can counter a possible snap-judgment decision and/or help solve a problem created, not by intent, but by misunderstanding or a need for more training. Don’t forget, a short-term problem could hide a potentially excellent employee, given time and assistance. If not, the employer has covered his or her bases when termination results.

All of this is involved, but not impossible. I suggest you break it down into step-by-step components. Just remember, it’s really the only safe way you can proceed.

Steve M. Cohen, Ed.D., CMC is President/Partner of Labor Management Advisory Group, Inc. and HR Solutions: On-Call, both based in Kansas City, MO. For more information, visit or call (913) 927-0229.

The above information is shared by a guest contributor and does not necessarily reflect the views of Medical Office Manager.









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