As an employee, one of the first items you should review in your employee handbook is the code of conduct for employees and its disciplinary policies and procedures. What the employer adopts as its policy for employee conduct and discipline is treated as the contract between the parties. [caption id="attachment_40306" align="alignleft" width="156"]
Nancy J. Brent, MS, JD, RN[/caption] Many employers have adopted a progressive disciplinary policy. This means established steps are identified to warn the employee about unacceptable behavior and, at the same time, allows the employee to correct or improve areas of conduct. If improvement or correction is not seen by measuring an employee's conduct by objective parameters that both the employee and employer know, termination can occur. Progressive disciplinary policies also allow the employer to skip the progressive steps and terminate a nurse immediately if a the nurse's conduct is egregious. Types of egregious conduct include falsification of records made during patient care, theft of patient property and a breach of patient confidentiality. In a case involving a nursing home administrator and its medical records director (Chicarello v. Employment Security Department, 930 P. 2d 170-N.M. 1996), these principles were emphasized. The medical records director had been employed by the nursing home for sixteen years before a new administrator was hired at the home. The new administrator decided to review the residents' charts and identified many deficiencies in the current system as to how the charts were being maintained ("Employment Law: Employer Must Follow Progressive Discipline Policy for Unsatisfactory Performance," Legal Eagle Eye Newsletter for the Nursing Profession, April 1997, 2). The medical records director was given a specific time frame within which the deficiencies were to be corrected. Instead of reviewing the medical records in question to determine if the deficits were corrected, the medical director was terminated from his position. The fired medical director filed a suit with the state's employment security department, alleging his termination was not lawful. The case made its way to the New Mexico Supreme Court, which decided in favor of the employee. The court carefully pointed out there was a difference between poor or unsatisfactory job performance and willful misconduct. Willful misconduct, according to the court, is deliberate misbehavior that substantially disregards the employer's legitimate interests and expectations of the employer and of the employee's duties and obligations toward the employer. Willful misconduct can result in a firing without notice to the employee. In contrast, this court opined, unsatisfactory job performance requires the employer to take a stepwise approach. The employee must be warned that the conduct under question does not meet the employer's expectations. Also, the employee should be given the opportunity to change his or her conduct to conform with those expectations. An employer with a progressive disciplinary policy must follow its stepwise approach for unsatisfactory job performance. As an employee, you should know your employer's disciplinary policy and procedure and conduct yourself in a way that does not include egregious or willful misconduct. If disciplined for unacceptable job performance, be sure to understand and comply with what is needed to avoid further discipline that may result in a termination of employment. If you believe you are being treated unfairly or treatment is inconsistent with the employer's policy, utilize the employer's adopted grievance policy and procedure to challenge the unfair or noncompliant employer behavior. A good overview of progressive disciplinary policies can be found at The Research Foundation of State University of New York website. NOTE: Nancy Brent's posts are designed for educational purposes and are not to be taken as specific legal or other advice. Individuals who need advice on a specific incident or work situation should contact a nurse attorney or attorney in their state. Visit The American Association of Nurse Attorneys website to search its attorney referral database by state. To comment, email [email protected].
