Employment Law for Ministries

  
 

Employee Discipline Best Practices

Disciplining employees is often difficult and creates litigation risk. Over time, "best practices" for discipline have developed and include deliberate steps that can make the task more comfortable and mitigate risk. Thoughtful disciplinary practices also foster employee morale because they demonstrate that the employer is committed to fairness.

For ministry organizations, disciplinary best practices are not appreciably different than those suited for secular workplaces, although there are nuances. Read on for our thoughts on this topic.

Notice—Workplaces are a source of unexpected and sometimes incredible stories. No one can foresee everything that might go awry, so employers can never make an exhaustive list of employee “dos and don’ts.” Still, publishing key workplace rules gives employees notice of workplace expectations; in turn, clear expectations make discipline not only less taxing on those issuing the discipline but also more legally defensible. In short, employers should publish workplace rules and expectations to which workers may be held accountable. See our June issue on key HR policies for more information on that topic.

Ministry employers should incorporate theological lifestyle expectations into their conduct rules. These expectations will sometimes overlap with more earthly ones. For example, most employers prohibit employees from being under the influence of alcohol at work, while a ministry employer may for theological reasons ban all alcohol consumption. Additional ministry-specific rules may cover requirements that employees tithe and attend services or may set boundaries on acceptable sexual conduct.

Progressive Discipline/PIPs—Take incremental steps to address performance problems. Progressive discipline is often the best approach: warnings, counseling, and memos should get an employee’s attention before more severe action is necessary. A written performance improvement plan (PIP) is useful when it specifies job expectations, the employee’s need to meet them, and deadlines for doing so. The goal of any PIP should be that the worker internalizes the need for improvement, commits to addressing the problem, and demonstrates sustained satisfactory performance. It is important, though, that a PIP be carefully written; ambiguities can create a quagmire that leaves the employer questioning what its next step should be. All PIPs should be clear on milestones, how and who determines when milestones are met, and a clear substantive expectations.

Factual accuracy—Imagine that a church fires a worker for misusing church funds and the worker responds with a lawsuit denying any wrongdoing. Must the church be able to prove the worker in fact misappropriated money to successfully defend against the claim? No. It is a valid defense to many discrimination claims that the employer truly believed that the employee engaged in misconduct even if he or she didn’t. Still, an employer facing a lawsuit unquestionably stands on more solid ground if the facts back it up. Accordingly, the following should occur before discipline is implemented:

  • perform and document thorough fact-finding;
  • invite the employee to share his or her side of the story;
  • play the devil’s advocate to test those who claim an employee deserves discipline;
  • consider whether the employee has recently engaged in “protected conduct” such as complaining about discrimination or blowing the whistle on wrongdoing, which may counsel against discipline.

Documentation—We cannot overstate the value of contemporaneous documentation of performance problems. The reality is that many managers and supervisors simply are not good about documentation. Oftentimes, documentation that is available is not particularly helpful in defending against an employment claim. For example, there is a temptation to give “balanced” feedback in annual performance evaluations so as not to discourage or offend employees. Cursory or milquetoast reviews might portray a worker’s performance as “just fine” or “meeting expectations”—hardly supportive of discipline. An employer is not "required" to have documentation supporting discipline, but its absence is a significant litigation risk.

Policy compliance—If a disciplinary policy is in place, follow it. Deviating from an established policy can lead to allegations that the employer is trying to hide something (e.g., a discriminatory motive). Rule of thumb: review your disciplinary policy before taking disciplinary action.

Consistency—Over time, employers develop a disciplinary track record. If sued by a worker, they usually must disclose how they have treated similarly situated employees in the past. Deviations from established patterns may also suggest that the employer is trying to mask an unlawful reason for the discipline.

Proportionality—No one would argue that Adam and Eve got off lightly when they broke Eden’s "no-fruit-of-that-tree" rule. Harsh action, including termination, is sometimes in order.  In each instance, however, employers should consider whether the “punishment fits the crime.”

Compassion—Most lists of best disciplinary practices for disciplinary actions do not focus on the role of compassion. It makes sense to believe that ministry employers on the whole are more inclined than secular ones to be compassionate toward employees with performance or conduct problems. There is a pull, perhaps, to be a Good Samaritan when an employee is down on his or her luck, or to model grace and forgiveness. Not only that, many ministries have small staffs or are in small communities, where friendships make it difficult to separate personal feelings toward a worker and what we might call "business" interests.

If you’re tempted to be compassionate toward a worker in the sense of forgiving or turning a blind eye to performance or conduct problems, or bending the rules to “help” the worker, be advised that the well-known first rule of employment law is that no good deed goes unpunished. The internet is full of stories of employers who tried to help employees and lived to regret it. As a standard risk mitigation practice, it is better for employers to follow workplace rules “by the book.”

That is not a directive to forego compassion. Rather, reserve compassion for the process and the employee's transition, not the outcome. The factors discussed above, such as progressive discipline that gives a worker the chance to correct performance, contribute to a compassionate process. Severance policies are a compassionate means of helping a worker make a new start. A rule of thumb: if a difficult situation with a worker is pulling at your heart strings, pause long enough before making a decision to talk through the situation with an attorney or other disinterested third party.

The above considerations are not an exhaustive list of best disciplinary practices and each situation requires case-by-case consideration. But a methodical approach to discipline is a good risk mitigation strategy.

As always, if you have any questions about the above, please feel free to contact us.

This summary is provided as an informational tool. It is not intended to be and should not be considered legal advice, and receipt of this information does not establish an attorney-client relationship.