Using progressive discipline can help employers show they treat employees fairly, and it can help them defeat discrimination and retaliation claims.
But there are cases when it is better for a cannabis industry employee to be fired on the spot. Here’s how to determine if you should – and when to – skip progressive discipline and go straight to the termination.
A business may risk liability if a dispensary worker who has engaged in severe misconduct remains employed – and hurts someone or damages property. Outside of the cannabis industry, even unionized employers with collective bargaining agreements that require progressive discipline can fire employees quickly.
Reasons for Fast Firing
Many collective bargaining agreements list reasons for immediate termination, These reasons are useful guidelines for all employers that use progressive discipline:
- Serious Insubordination
- Willful Destruction of Property
- Drugs or Alcohol
- Falsification of Records
What are the liability risks? Suppose a cannabis industry employer knew an employee had driven on the job while under the influence of alcohol but still allowed the person behind the wheel at work while it slogged through the steps of progressive discipline. If the worker drove while drunk again, the employer could be responsible for a subsequent accident in which others were injured or killed.
When safety is involved cannabis industry training is essential, it makes sense to skip straight to the termination. That would include when employees are a threat to themselves or others, such as by stalking and that immediate termination may be called for when the employee has engaged in criminal activity.
An employee may be suspended or terminated for an arrest so long as the conduct for which the employee was arrested is relevant to his or her job and makes the individual unfit for the position, such as when a school bus driver is arrested for driving while intoxicated.
But if a bus driver was arrested for disorderly conduct, the charge would not likely be considered job-related, nor would it likely indicate a significant probable safety or security risk to others. Therefore, the employer might not have a justifiable defense for taking any employment action against the individual because of the arrest.
Sexual harassment and dishonest behavior that undermines the employer’s ability to trust the employee also may prompt an employer to immediately fire a worker. There may also be times when an employee is such a poor performer that the employer knows the employee will not be able to be rehabilitated, so it makes sense to go right to termination.
There may also be times when an employee is such a poor performer that the employer knows the employee will not be able to be rehabilitated, so it makes sense to go right to termination. Progressive discipline also might be skipped when firing a probationary cannabis industry employee and for such egregious misconduct at work as drawing racist graffiti, visiting pornographic websites or driving a company car to a strip club.
Termination decisions are inherently fact-specific.
Although a history of using progressive discipline is helpful to employers that are defending themselves against discrimination cases, it’s not a silver bullet since many times dispensary employee training is needed.
Sometimes, supervisors do not follow progressive discipline policies, often because they want to maintain a positive working relationship with an employee.
By the time they get to the point of giving the first warning, they are done with the employee and know the employee cannot succeed, and they just wish to go to the termination. Other times, dispensary managers apply progressive discipline policies too rigidly and give a verbal warning for serious misconduct when termination is more appropriate.
But overall, managers are swifter to terminate than they used to be and your per-capita employee cost and demands for production continue to increase. Those expenses and pressures may make it harder to find the time to coach, counsel and correct employees.
The employer’s policies should clarify that progressive discipline is just for guidance and the employer retains the right to skip straight to termination at any time at its sole discretion. A well-written handbook will list infractions that can lead to immediate termination while preserving the overall status of at-will employment.
But even when the policy says everything right, employees often point to a failure to go through the steps and follow a progressive discipline as evidence of unfair treatment or as a pretext for discrimination.
Let us know what you think.