Nina is a one-person employee and labor relations department for a midsize hospital. Her job can get rather busy because line managers reach out to her often for support in holding their employees accountable.
Nina's approach to employee discipline stems from her sense of fairness and her strong work ethic: While she understands that employees sometimes face challenges that might get in the way of their work performance, she believes they nevertheless need to perform at a minimally acceptable level to earn their pay. Yet she also recognizes that recent changes in employment law may constrain her ability to discipline or terminate workers, and it can be a challenge to explain this to the line managers who look to her for guidance and wisdom.
"In truth, the National Labor Relations Board [NLRB] has taken an exceptionally aggressive stance in terms of limiting employers' rights to discipline workers for certain infractions," said Rich Falcone, a shareholder at law firm Littler Mendelson in Irvine, Calif. (no relation to the author). "Employers are well-advised to take caution before doling out corrective action or moving to termination for certain offenses."
A case in point: Employers historically have had a huge amount of discretion when it comes to dealing with employee misconduct. Depending on the level of egregiousness, employers could typically move to immediate termination (known as a "summary dismissal") or issue a final written warning even for a first offense. "The NLRB, however, in recent years has curtailed an employer's discretion in handling certain conduct-related offenses, even for nonunion employee populations," Falcone said. Consequently, employers need to ensure that their policies and practices are not only consistent with state law but with the National Labor Relations Act as well.
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