Evaluation and Discipline of Employees

by Matthew Sean Brick on Feb. 06, 2019

Business Employment 

Summary: The purpose of this article is to cover ways for managers to successfully evaluate, discipline and terminate employees.



Evaluation, Disciplining and Terminating Employees


In this seminar, we will cover the following employment issues:

A primary way for managers to improve employee performance, set staff expectations and reduce legal liability is through proper documentation.

This presentation will provide an overview of common employee-related management issues and provide tips on documenting employee matters.

1. Background Checks

2. Documentation

3. Disciplinary Action

The Role of Background Checks

When making personnel decisions, based on background checks, including: hiring, retention, promotion or reassignment you must comply with federal laws.

Request for background check information must be given in a stand alone document.

Actions Based on Background Checks

Before you take action you must:

Provide the employee notice that includes the consumer report you relied on.

Provide the employee with a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act.”

After you take action you must:

State that the decision was based on information in the report.

That he/she has the right to dispute the accuracy of the report.

Court Test

Most courts follow the 8th Circuit test developed in the 1970’s:

1. Nature of the crime;

2. Time elapsed since crime; and

3. Nature of the job.

Denial of job requires:

A. Notice that crime was reason;

B. Opportunity for applicant to respond; and

C. Reconsideration by employer.

“Ban the Box” Initiative

An initiative designed to give job seekers with criminal convictions a “Fair Chance” at employment.

Bans the use of conviction history questions prior to evaluating whether the employee is qualified for the position.

Fair Chance policies have been adopted by 19 states and over 100 cities.

Iowa does not currently have a policy, however, various policies exist in nearby: Nebraska, Minnesota, Illinois, and Colorado.

Equal Employment Opportunity Commission Position

In April 2012, the EEOC issued Enforcement Guidelines on criminal background checks.

Employer’s use of criminal background checks in making an employment decision can be presumed to be discrimination on the basis of race or national origin.

Based on disparate treatment or disparate impact theories of discrimination.

This is the EEOC’s position, it is not a position that has been widely adopted by the courts.

The Only Rule to Remember



Educates Employees.

Juries draw negative inferences from the absence of documents.

Written records refresh memories.

Establishes that similarly-situated employees treated same.

Courts give greater weight to documents than to memories.

Suggestions for Documentation

Assume ALL documentation will end up in a court of law.

Prepare documentation as soon after the incident as possible.

Give an opportunity to improve.

Avoid Jargon and use understandable language.

Narrate a story.

The Role of Voice & E-mail

E-mail and voice mail are effective forms of documentation to protect yourself.

A short e-mail to an employee is sometimes all that is needed.

If you do not make e-mail or voice mail work for you, it will most likley work against you and the company.

The Role of Performance Evaluations

When disciplining or terminating for ongoing job performance, the performance issues must be documented.

The first place courts look is an employee’s past performance evaluations.

Performance Evaluation Best Practices

A “Good” employee evaluation is one that is balanced, accurate, and properly documented.



Recognize achievements.

Identify areas for improvement.

Coordinate employee’s goals with Employer’s goals.

Set expectations and consequences.

Describe performance instead of merely “checking a box.”

Supervisors’ Responsibilities:

Ensure all employees perform their assigned duties and responsibilities in an effective and efficient manner.

Evaluate and discuss performance with employees.

Apply disciplinary action.

Treat all employees fairly.

Act in a manner that does not demean or label employees.

Traps to Avoid

Showing sympathy

Becoming angry or defensive

Not asserting yourself

Trying to counsel the employee

Believing you can change the employee

The Discipline Decision

Did the company give prior warnings of the possible consequences of the conduct?

Was the company’s rule or the supervisor’s order reasonably related to the efficient and safe operation of the company?

Did the company obtain sufficient evidence?

The Discipiline Decision

Did the company investigate?

Was the company’s investigation objective?

Was this termination consistent with past actions?

Was the amount of discipline “reasonably related” to the offense?

The Discipline Decision

Once discipline is determined to be an appropriate action by the employer, the employer must review what disciplinary action was taken in similar circumstances.


If the discipline is more severe, documentation must show why.

If the discipline is less severe and the other employee finds out, he/she may believe they were treated more harshly/unfairly.


Common Termination Issues


Every employee is a member of a protected class!


A large number of retaliation cases are brought when the underlying discrimination claim has no merit.

Disparate treatment/impact


Non-work activities

Non-Work Activities

Examples of illegal off-duty activities:



Drug arrest

If an employee is sentenced to jail time, justification for discipline may not be the crime they committed, but the fact the employee cannot fulfill their obligation to report to work.

Courts have upheld the legality of termination or discipline for off-duty behavior that negatively impacts the work environment, job performance, or employer’s reputation.

Non-Work Activities

Concerted activity” is protected activity

When employees are discussing terms and conditions of employment with fellow employees.

Therefore, employees have the right to make comments on social media about their wages and working conditions with their co-workers.


Brian learned on Saturday that John had planned to complain to HR about Brian and several other employees work.

That Saturday, Brian posted on his Facebook page: “John feels that we don’t help our clients enough. I about had it! My fellow co-workers how do you feel?”

The employer fired Brian and four other employees that commented on the Facebook post for violating the employers harassment policy.

HOWEVER, the court found the employees were engaged in concerted activity—therefore wrongfully terminated.

Non-Work Activities

An employee's social media activity is protected “concerted activity” if it:

Involves other employees

Relates to the shared terms and conditions of employment

Is not an activity that is otherwise carried out in a reckless or malicious manner

Social media activity that is not protected could include:

Communications unrelated to the terms and conditions of employment

Posts protesting the quality of services provided by an employer only tangentially related to employee terms and conditions of employment

Expressions of an individual gripe.

Thank you for your attention.


Matthew S. Brick

Brick Gentry Law Firm


(515) 274-1450

Legal Articles Additional Disclaimer

Lawyer.com is not a law firm and does not offer legal advice. Content posted on Lawyer.com is the sole responsibility of the person from whom such content originated and is not reviewed or commented on by Lawyer.com. The application of law to any set of facts is a highly specialized skill, practiced by lawyers and often dependent on jurisdiction. Content on the site of a legal nature may or may not be accurate for a particular state or jurisdiction and may largely depend on specific circumstances surrounding individual cases, which may or may not be consistent with your circumstances or may no longer be up-to-date to the extent that laws have changed since posting. Legal articles therefore are for review as general research and for use in helping to gauge a lawyer's expertise on a matter. If you are seeking specific legal advice, Lawyer.com recommends that you contact a lawyer to review your specific issues. See Lawyer.com's full Terms of Use for more information.