Three-Strike Policies Mean Everybody’s Out
Just like umpires on the baseball field, employers are constantly making hard calls about employee performance. What level of corrective action is necessary if an employee has a huge swing and a miss? What if they don’t even try to hit the ball, or worse, they get angry and throw the bat? With all of these baseball analogies, it’s easy to see why employers are tempted to use the game’s most sacred rule: three strikes and you’re out.
But be careful: three-strike policies are NEVER a good idea. Here’s why not, and what you should do instead.
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Three-Strike Policies Don’t Hold Up in Practice
Three-strike policies appeal to employers because they seem straightforward and easy to administer. At first glance, they seem to promise a level playing field and clear rules for management and employees alike. Both you and your employee know how many strikes are in their file and understand the consequence of getting a third. So what’s the problem?
Here are 5 reasons three-strike policies don’t work:
1. They’re vague.
“Three strikes” sounds specific, but it isn’t.
For starters, what constitutes a strike? Do only formal write-ups count? What about that email you sent half the team last week about being tardy? If you pull an employee aside to ask them to clean up their workspace, does that count? And do strikes last forever, or do they expire? Do you mean three strikes for being late, three strikes for not charting things in a timely manner, and three strikes for not completing their closing checklist? Because now we are up to nine strikes!
With a range of issues of varying severity to cover, an idealistic three strike policy doesn’t always fit.
2. They lack flexibility.
Treating minor infractions the same as major ones can make your management decisions look frivolous and could force your hand when what you actually need is flexibility.
What if one of your strongest employees reaches a third strike for a minor reason—will you terminate? What if you do need to terminate someone for a third “strike” according to your policy, but there are extra risk factors involved that you haven’t yet talked over with an expert? An inflexible three-strike policy may require you to fire too soon and work against the business’ interests.
3. They’re hard to apply evenly.
While you should always strive to treat employees fairly, a three-strike policy provides easy documentation against you if you are accidentally inconsistent.
Did you give one employee an informal, no-strike reprimand for an unexcused medical absence but give another a formal corrective action because you didn’t believe his story? Do you laugh off one employee’s mistakes while correcting another’s because you feel the circumstances are different? What about when an employee is just not a fit? What kind of strike do you issue for that?
If your actions are ever anything less than uniform you risk sending a message to employees that you apply policies in an arbitrary fashion.
4. They invite lawsuits.
First, there’s the danger that you might apply a three-strike policy differently for different employees, which often looks discriminatory. Plus, employers must be especially careful issuing corrective actions to employees who are in a protected class (race, gender, disability, etc.) or are currently or have recently engaged in protected activity (claiming workers compensation, filing a sexual harassment claim, etc.).
Calling strikes too quickly and without expert advice can easily provoke discrimination claims and lead to wrongful termination lawsuits.
5. They harm the at-will employment relationship and they don’t work as a management tool.
In all states but Montana, employment is “at will,” meaning that employers can terminate an employee for any legal reason, or even no reason, as long as no illegal reason is involved.
But be careful—the at-will relationship is easy to damage if an employee can reasonably interpret your words or actions as a guarantee of continued or future employment. With a three strike policy, you’re implying employment up to strike number three—so if an employee does something egregiously wrong and you terminate immediately, they may actually have a case against you.
Think of how many ways that last point can go wrong! You can’t let yourself be forced to keep an employee who has embezzled from your practice, misused patient data, or committed some other heinous or dangerous act. And yet just having a three-strike policy in place can make it dangerous for you to terminate before the strikes are up.
There’s another problem if you realize you need to let an employee go before the third strike. Doctors and managers are sometimes tempted to quickly come up with the remaining strike or two, even for questionable or ambiguous reasons. But now you’re managing the employee you want to let go differently than the rest of your team, so you may have just handed them a valid discrimination claim.
Overall, three strike policies damage your ability to make the right call under the circumstances. You may be tempted to keep some employees past the point where they should be let go, and forced to terminate others to avoid the appearance of discrimination. This increases your risk of employee lawsuits when you actually need policies that decrease those risks, instead.
Reclaim Your Flexibility and Discretion: Use Progressive Corrective Coaching
Flexibility is valuable and necessary for employers. While your policies do need to provide a firm, legally compliant foundation for fair and consistent management and lower your risks as an employer, they should also be flexible enough to give you discretion. To achieve this, we recommend retiring your three-strike policy and using the Progressive Corrective Coaching (PCC) method, instead.
A well drafted PCC policy allows you to solve any problem with any employee.
The PCC method gives management the flexibility to consider individual circumstances and choose the appropriate level of response.
While a progression from verbal warnings to written corrective actions might make sense in most cases, PCC also provides the flexibility to skip straight to a final warning for serious problems, or even to terminate immediately when truly necessary. The PCC procedure also adds a layer of protection for you and your office against litigation by documenting the legitimate performance issues that lead up to the termination. You can read more about PCC here.
CEDR Solutions can work with you on your Employee Handbook and PCC policy to allow you as much freedom to manage your office as possible, while lowering your risks as an employer. Send us a message to get in touch.
Though popular with many employers, three-strike policies actually create more liability for your business than they are worth.
Not only are they difficult to enforce consistently (which could leave your business vulnerable to discrimination claims), but they also damage your business’ at-will status and could leave you in a difficult position should you feel the need to terminate before that third and final strike occurs.
Rather than boxing yourself in with an inflexible and ineffective three-strike policy, we recommend that you employ something more like a Progressive Corrective Coaching model, which accounts for the flexibility you need as an employer and keeps your at-will status intact.
If your business is using a three-strike policy right now, it’s time to consider taking it off the field for good. Otherwise, you risk setting an employment attorney up with a home-run case the next time you decide to send an employee packing.
This post updated January 27, 2021; originally published December 11, 2015.