Progressive discipline is a model in which the severity of the discipline increases each time an employee commits an infraction. Generally, the progressive discipline scale starts with an oral reprimand, followed by a written warning, suspension and, finally, termination. Progressive discipline procedures are most often found in collective bargaining agreements and in the public employment arena, but they are also found in the private sector.
There are two major issues with having a progressive discipline procedure in an at-will relationship. First, it can be time-consuming to administer the steps and generate the supporting paperwork. Second, a progressive discipline procedure can, under certain circumstances, change an at-will employment relationship to a contractual one, whether or not the policy is written. Employee handbooks, company policy, and oral representations have all been recognized as evidence of an implied employment contract.
Contracts. California employers should be cautious about fairly and consistently following any procedures whether promised in writing, published in an employee handbook, or simply consistently practiced.
On the other hand, even though California is an employment-at-will state, employers and employees may limit their otherwise at-will relationship by contract, either express or implied (Guz v. Bechtel
, 24 Cal. 4th 317 (2000)). More information is available at theCalifornia Employment Contracts
and Employee Handbooks
Practice Tip: To ensure that the employment at-will status is maintained, employers in California should include conspicuous contract disclaimers in their disciplinary policies and procedures.
Whistleblowers. It is illegal in California to ...