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Progressive DisciplineSteven S. Glickman

While many employers are familiar with the term “progressive discipline,” only a relative few fully comprehend its true meaning.

Unions and employees would have employers believe that if an employee engages in misconduct, no matter the severity, the employer must start with minor discipline, i.e., oral warning, written warning, or small suspension. However, as in Gilbert and Sullivan’s Mikado, progressive discipline simply requires that the punishment must fit the crime.

In In the Matter of Tammy Herrmann, 192 N.J. 19, (2007), DYFS removed an employee “for cause.” Both the Administrative Law Judge and the Merit System Board supported the termination. The Appellate Division vacated the termination, holding that progressive discipline required a lesser penalty.

The Supreme Court reversed the Appellate Division and upheld the termination as follows:

The concept of progressive discipline has been utilized in two ways when determining the appropriate penalty for present misconduct. First, principles of progressive discipline can support the imposition of a more severe penalty for a public employee who engages in habitual misconduct. . . . The second use to which the principle of progressive discipline has been put to use is to mitigate the penalty for a current offense. It is in that sense that the MSB [Merit System Board] cites the principle of progressive discipline when it downgrades a penalty for an employee who has a substantial record of employment that is largely or totally unblemished by significant disciplinary infractions. . . .

Although progressive discipline is a recognized and accepted principle that has currency in the MSB’s sensitive task of meting out an appropriate penalty to a classified employees in the public sector, that is not to say that incremental discipline is a principle that must be applied in every disciplinary setting. To the contrary, judicial decisions have recognized that progressive discipline is not a necessary consideration when reviewing an agency head’s choice of penalty when the misconduct is severe, when it is unbecoming to the employee’s position or renders the employee unsuitable for continuation in the position, or when application of the principle would be contrary to the public interest.

While Herrmann establishes that progressive discipline does not require “incremental” action for severe or habitual misconduct, it does not define when and how an employee’s “past record” requires a disciplinary penalty to be mitigated. This was resolved by the New Jersey Supreme Court in West New York v. Bock, 38 N.J. 500 (1962), where a fireman’s disciplinary penalty was mitigated from termination to six months:

We believe that, besides such ratings [service ratings/evaluations], if available, the terms should be held to encompass an employee's reasonably recent history of promotions, commendations and the like on the one hand and, on the other, formally adjudicated disciplinary actions as well as instances of misconduct informally adjudicated, so to speak, by having been previously called to the attention of and admitted by the employee. We further feel that such history should be formally introduced in evidence at the hearing by the party desiring to have it considered, so that it may be fully known to the adversary as well as to the tribunal and may be met or explained in any material or relevant manner.

Therefore, when considering disciplinary action and the applicability of progressive discipline, remember: (1) depending upon either the habitual nature or severity of the misconduct, severe disciplinary action, including termination, may be warranted and (2) the employee’s past record of documented adjudicated disciplinary actions may require mitigation of disciplinary action for current misconduct.