At some businesses, immediate termination follows a specified number of disciplinary warnings. But this often lacks the flexibility that dairy producers need when managing employees. Fortunately, there are better options.
By Anthony P. Raimondo, attorney, McCormick Barstow LLP
Many dairymen are reluctant to document incidents where they have to correct or discipline an employee. This reluctance often arises from a misunderstanding of “progressive discipline” and how to demonstrate cause to support disciplinary action, including termination of employment.
Most employment is “at-will,” meaning either employer or employee can terminate the relationship at any time for any reason. Over time, the “at-will” principle has been modified by laws, limiting the employer’s right to terminate for “any reason.”
For example, whistleblower laws protect employees’ right to raise complaints about unlawful or unsafe conduct in the workplace. Discrimination laws protect employees from being fired for their race, religion, national origin, gender and other prohibited reasons. Prudent employers will be prepared to present a business justification for adverse employment actions in order to protect themselves from claims of wrongful termination or discrimination.
Some businesses have adopted strict forms of “progressive discipline,” a process where a specified number of disciplinary warnings results in immediate termination. When consistently enforced, such systems provide consistency and objectivity, and can protect the business from accusations.
But strict progressive discipline systems lack the flexibility that dairy producers often need when managing employees. A “three strikes and you’re out” policy may force a dairy to terminate an employee who shows promise for the future, or to terminate a good employee who is going through a bad patch. In addition, these policies can lead to operational difficulties if a dairy finds itself short-handed due to lost employees who have been terminated without being replaced.
One of the unusual features of dairy employment is that the best dairy employees are those that the producer can keep on the ranch for years, or even decades. Dairies highly value employees who remain with the business for 10, 20 or 30 years, and long-term employees are far more common in the dairy than in our generally mobile society as a whole.
When an employee works for a farmer for decades, the business is likely to see the impact that divorce, family tragedies, struggles with children and other personal issues can have on work performance. In dairies, it can be important to ride out the “rough patches” to bring a good employee back to good performance. Rigid progressive discipline systems do not provide the flexibility that is needed in such circumstances.
Fortunately, there are better options. The most effective disciplinary systems take into account all of the circumstances surrounding the incident, including the employee’s history with the company, the severity of the incident, how the employee responded to his or her mistake, and any other factors that can affect the decision process.
For example, a long-term, valued employee has built up a store of “good will” that can offset many serious problems that might lead a brand new employee to be terminated. An employee who is honest and owns up to a mistake might be given leniency that is not given to an employee who is dishonest and tries to cover up a mistake.
The critical element of effective discipline is to maintain the necessary documentation to show why an employee was treated a certain way. When labor disputes end up in litigation, the situation is examined in hindsight, and it is important to have tangible evidence of the disciplinary process. Dairy producers should not be afraid of flexibility in discipline, as long as they have a habit of good documentation that will tell the story.
The goal of this article is to provide employers with current labor and employment law information. The contents should not be interpreted or construed as legal advice or opinion. For individual responses to questions or concerns regarding any given situation, consult with Anthony Raimondo at McCormick Barstow LLP in Fresno, Calif., at (559) 433-1300.