By Mark Broth
"All but one man died ... There at Bitter Creek ... and they say he ran away. Branded! Marked with a coward’s shame. What do you do when you’re branded, will you fight for your name? He was innocent ... not a charge was true ... but the world would never know. Branded! Scorned as the one who ran. What do you do when you’re branded, and you know you’re a man? Wherever you go for the rest of your life you must prove ... you’re a man.
Branded, NBC TV Theme Song (1965-1966).
After his run as TV’s The Rifleman (and a short stint as a member of the Boston Celtics), actor Chuck Connors played Luke McCord, a US Army officer who was the lone survivor of the fictitious “Bitter Creek Massacre.” Falsely accused of cowardice, he is dishonorably discharged. Each episode began with McCord standing at attention before the assembled troops. An officer ripped the lapels and buttons from his uniform, broke his sword, and tossed the broken pieces outside of the fort. McCord wandered the Old West for the next 48 episodes, trying to establish a normal life while being haunted by the accusation of cowardice. (For a peek at the opening scene, go to https://www.youtube.com/watch?v=uV-7D4io1Rs)
For this fictional version of the US Army, cowardice was an offense of such great magnitude that humiliation was an integral part of the disciplinary process. It was not enough to simply fire McCord; instead, the discharge process was intended to humiliate him before his peers and force him to carry the weight of his misconduct with him for the rest of his life.
In the real world, employers need to obtain employee compliance with rules, policies, and procedures in order to assure that work is performed in a safe, efficient, and effective manner. Employers have many tools at their disposal to achieve those objectives. Employers can be selective in hiring; provide employees with appropriate orientation and training; be clear and consistent with regard to behavioral and performance expectations; provide employees with regular feedback and evaluation; and provide counseling and performance improvement guidance. When these measures are unsuccessful, or where the employee conduct or performance warrants a more direct and immediate response, discipline is another tool that can be used to help employees become successful.
The ability of employers to impose discipline does not carry with it the right to strip employees of their dignity. I cannot think of any circumstances where the employer benefits from the employee’s humiliation. Being a supervisor gives you the right to make disciplinary decisions and to instruct employees how they can better perform their job duties. However, in our egalitarian society, being a supervisor does not make you a better person than the employees that you supervise. A disciplinary meeting is a time to make sure employees understand where their conduct or performance fell short of expectations and what they need to do to improve. It is not a time for generally questioning the employee’s values, ethics, or morals; commenting on their lifestyle, their families, or how they were raised; or opining on their shortfalls as human beings.
The administration of discipline should be a private affair. Unless the goal is humiliation, a disciplinary meeting should involve only those necessary to attend, such as supervisors and HR representatives. The employee’s peers and subordinates should generally not be present. The fact, subject matter, and outcome of a disciplinary meeting is not information that should be disseminated throughout a workplace. Be mindful of the fact that personnel actions and records are exempt from disclosure under RSA 91-A, so employees have an expectation of confidentiality.
“What do you do when you’re branded, will you fight for your name?” Employees can accept being disciplined, particularly when they have been made aware of what is expected of them and the consequences that will result if they fail to meet expectations. But employees will not accept an assault on their dignity and may feel compelled to contest a disciplinary action simply to restore their good name. As a result, administration of discipline in a disrespectful manner can lead to otherwise avoidable grievances or litigation.
Employers should be mindful that almost everyone who serves on a jury is or was once an employee. In a lawsuit resulting from an employee termination, a plaintiff’s lawyers will offer evidence that the employer lacked sufficient grounds for the disciplinary act. Plaintiff’s counsel will also offer evidence regarding the manner in which the employee was fired. Jurors will be kind to an employer that made a good faith effort to assure that an employee was treated fairly and with dignity, even if they believe that the employer reached the wrong result. But if jurors believe that the employee was unnecessarily or intentionally humiliated, they will find a way to correct that wrong.
The walk of shame may be appropriate in the Old West or King’s Landing, but has no place in the administration of workplace discipline.
Mark Broth is a member of the DrummondWoodsum’s Labor and Employment Group and his practice focuses on the representation of private and public employers in all aspects of the employer-employee relationship. This is not a legal document nor is it intended to serve as legal advice or a legal opinion. Drummond Woodsum & MacMahon, P.A. makes no representations that this is a complete or final description or procedure that would ensure legal compliance and does not intend that the reader should rely on it as such. “Copyright 2016 Drummond Woodsum. These materials may not be reproduced without prior written permission.”
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