December 11, 2015

Why “Three Strikes” Employee Discipline Policies Don’t Work, and What to Use Instead

umpire signaling you're out, symbolizing a three strikes employee discipline policy

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, 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.

Three Strike Policies Don’t Hold Up in Practice

Three strike policies appeal to employers because they seem straightforward and easy to administer. They seem to promise a level playing field and clear rules. Both you and your employee know how many strikes are in their file, and understand the consequence of getting a third. What’s the problem?

 

Here’s a whole list of strikes against three strike employee discipline policies:

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? With a range of issues of varying severity to cover, an idealistic three strike policy doesn’t always fit.

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They lack flexibility.

Treating minor infractions the same as major ones can make your choices look silly and force your hand. 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 another employee, but there are extra risk factors involved, which you haven’t yet talked over with an expert? An inflexible three strike policy may require you to fire too soon and against the practice’s interests.

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 Pam an informal, no-strike reprimand for an unexcused medical absence while giving Joey 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? If your actions are ever less than uniform, you’re risking showing employees that you apply policies in an arbitrary fashion.

They invite lawsuits.

First, there’s the danger that you might apply a three strike policy differently amongst different employees, which often looks discriminatory. Plus, employers must be especially careful issuing corrective actions if the employee is in a protected class (race, gender, disability, etc.) or engaged in a 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.Click here to watch our free webinar on hiring difference makers for your practice.

They harm the at-will employment relationship.

In all states but Montana, employment is “at will,” and you 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 through 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 strikes 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 of differently from 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 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 to lower your risks as an employer, they must also be flexible enough to give you discretion. To achieve this, we recommend calling a final “Out!” on any 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.

It 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. We would be happy to talk with you further about the type of policy you need to stay safe. And if you have a current handbook you think passes muster, or you’d like to know what changes you will need, we will review it for you for FREE. Just call (866) 414-6056, or email info@cedrsolutions.com.

Thank you for learning with us. Enjoy a productive, harmonious, lawsuit-free day!

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.