Employment Law: Employer Must Follow Progressive Discipline Policy For Unsatisfactory Performance
Legal Eagle Eye Newsletter for the Nursing Profession
April 1997
Quick Summary: There is a difference between unsatisfactory job performance and willful misconduct.
Willful misconduct means intentional disregard of the employer’s work rules. It is deliberate misbehavior amounting to a substantial disregard of the employer’s legitimate interests and expectations and of the employee’s duties and obligations toward the employer.
An employee can be fired without notice for willful misconduct.
Unsatisfactory job performance, on the other hand, requires the employer to take a stepwise approach. The employer should warn the employee that his or her conduct is not up to the employer’s expectations and provide an opportunity to bring the employee’s performance up to the employer’s expectations. If an employee fails to make corrections, the employee can be laid off but not fired.
An employee has the right to expect an employer will follow its progressive discipline policy for unsatisfactory job performance. SUPREME COURT OF NEW MEXICO, 1996.
The employee in question had been medical records director in a nursing home for more than sixteen years. A new administrator at the nursing home began reviewing patients’ charts and making note of numerous deficiencies which were felt to exist in the system for how the charts were being maintained. The medical records director was given a deadline by which time the specific deficiencies noted were to be corrected.
Then, instead of reviewing the charts to see if the alleged deficiencies had been remedied, the administrator abruptly terminated the medical records director for alleged employee misconduct. The Supreme Court of New Mexico ruled the medical records director had not been guilty of intentional misconduct, and that her termination was not justified.
An employer must follow its own progressive discipline policies before an employee can be let go for unsatisfactory job performance, the court ruled. Employees have the right to expect that an employer will follow its own employment policies. For example, the court pointed out that if an employee is to be warned for two unexcused absences, and fired only after two warnings, the employee cannot be fired any sooner than that for excessive absenteeism.
Employees have the right to have the employer’s job-performance expectations made known to them, the right to have unsatisfactory job performance pointed out, and the right to make necessary corrections before being subject to discipline. Discipline that is imposed cannot exceed the discipline that has been threatened.
When an employee is proven guilty of willful misconduct, on the other hand, substantial deliberate misbehavior in violation of an employer’s work rules, an employee can be fired without going through progressive discipline. Chicarello vs. Employment Security Division, Department of Labor, 930 P. 2d 170 (N.M., 1996).