There's no point in having safety rules if you're not prepared to discipline workers who disobey them. In fact, having a rule that you don't enforce is in some ways worse than having no rule at all. But discipline is risky business, especially if the worker belongs to a union. Chances are, you'll end up having to defend your action before an arbitrator or court.

But there is a technique you can use to make punishments stick if they're challenged later on. Better yet, this technique can help you straighten out wayward workers and avoid showdowns. The technique is called progressive discipline and this series will show you how to use it.

What Is Progressive Discipline?

Progressive discipline is a series of gradually sterner punishments. It usually starts with warnings for a first offense, mounts to suspensions and ultimately dismissal. At each stage you confront the worker, explain what he did wrong, impose the appropriate punishment and warn him to clean up his act. Just as importantly, you document each of your actions.

Progressive discipline works best against workers who commit repeat offenses which in and of themselves don't warrant termination, such as not wearing hardhats. It's not appropriate for extreme or egregious violations that call for immediate action termination even for a first offense. Arbitrators and courts will generally allow you to dispense with the warnings and suspend or even dismiss a first offender if the potential consequences of the safety violation are serious enough and if you punish all similar offenses the same way, lawyers say.

By the same token, you need to consider "mitigating factors," that is, circumstances calling for more lenient treatment like long service, lack of previous offenses, admission of wrongdoing and remorse. "Apply progressive discipline flexibly, not by the numbers," advises Atlanta lawyer Charles Morgan. But also make sure your decisions are justifiable and consistent.

Setting the Stage

You must notify workers in advance that you use progressive discipline and explain the steps. Put a description of the system in the collective bargaining agreement or if workers aren't in a union, in an employee manual.

You also need to keep records - memos, letters, notes from supervisors, photographs, etc. - each time you apply the policy and discipline a worker. This is especially important if the worker belongs to a union. Most collective bargaining agreements ban discipline without "just cause." If the worker files a grievance, you'll have to defend your actions at an arbitration hearing.

You'll be courting disaster if you try to reconstruct events before an arbitrator without written documentation to back you up, warns Washington, DC, lawyer and SafetyXChange advisor, Harold Engel. You'll need a written record even if the worker isn't in a union because you could get sued for discrimination or wrongful termination, Engel adds.

Conclusion

We're just getting started. Next week, I'll describe the different stages of progressive discipline and provide a Model Policy that you can adapt for your own workplace. In subsequent weeks, I'll use a hypothetical case to show you how to apply and document each stage of progressive discipline process.

* * * * *

THE CANADIAN PERSPECTIVE

This article and the next three parts are bi-national. Except where noted, they work equally well in the U.S. and Canada.

BY THE NUMBERS
2006 Workplace Injuries & Illnesses

By Glenn Demby

On October 16, the Bureau of Labor Statistics released the workplace non-fatal injuries and illness report for 2006. Here are the highlights:

Total Cases: 4.1 million (as compared to 4.2 million in 2005)
Total Injuries: 3.9 million (94.4% of all cases)
Injuries by Sector:

• Manufacturing: 20.1%
• Healthcare & Social Assistance: 16.3%
• Retail Trade: 14.8%
• Construction: 10.4%
• Accommodation & Food Services: 8.2%
• Transportation & Warehousing: 6.6%
• Wholesale Trade: 5.9%
• Admin. & Support & Waste Mgmt. & Remediation: 3.9%

Goods Producing Sector with the Lowest Incidence Rate: Mining (3.5 cases per 100 full-time workers)
Illnesses by Sector:

• Manufacturing: 36%
• Healthcare & Social Assistance: 20.7%
• Professional & Business Services: 8.4%
• Retail Trade: 6.9%
• Leisure & Hospitality: 6.1%
• Construction: 4.6%
• Transportation & Warehousing: 4.6%
• Financial Activities: 3.5%
• Wholesale Trade: 2.5%

Case Types

Source: Bureau of Labor Statistics, "Workplace Injuries and Illnesses in 2006," http://www.bls.gov/news.release/pdf/osh.pdf

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