Italian professional tennis player Fabio Fognini was suspended from the U.S. Open this week after he committed three separate unsportsmanlike incidents during his first–round loss. The most egregious outburst was cursing at the chair umpire and calling her a whore in Italian.
I do not know what the other two incidents were, but the Grand Slam board classified them all as “aggravated behavior” and “conduct contrary to the integrity of the game” in violation of its rules. The board is investigating the matter and could permanently suspend Fognini from the four major tournaments and impose a $250,000 penalty.
I am confident the chair umpire would have liked to have thrown Fognini off the court before she was verbally assaulted, but she had no power to do so under the applicable rules. Professional tennis, like other professional sports, has rigid rules regarding discipline. The major US professional leagues (NFL, MLB, NBA, NHL) each have player unions and collective bargaining agreements that govern discipline.
The At-Will Doctrine
Non-unionized employers are not bound by such rigid disciplinary steps. Almost every state recognizes employment at-will, which allows for employers and employees to terminate the employment relationship with or without cause. Nonetheless, one of the most common mistakes I see employers make regarding discipline is creating inflexible progressive discipline policies that limit their ability to terminate employment freely and at their discretion. Disciplinary policies that allow for discipline only under specific circumstances or through inflexible steps can inadvertently alter the at-will employment status. This is unfortunate and avoidable.
Winning Strategy
Here are four simple yet essential practices to follow to help preserve employment at-will:
15-0: Clearly state that employment is at-will in offer letters and employment agreements.
30-0: Include a disclaimer in employee handbooks that the policies within the handbook do not create any contract of employment. Expressly state that nothing shall be interpreted to alter the at-will relationship and specifically limit who has the authority to modify employment at-will status.
40-0: If you implement a progressive discipline policy, expressly state that the employer retains the right to skip, repeat or modify disciplinary procedures at its discretion. In addition, you can clarify that nothing in the progressive discipline policy alters the at-will relationship.
Game Set Match: Have employees sign an acknowledgment that they understand that their employment is at-will and nothing in the handbook constitutes an employment contract.
Conclusion
Progressive discipline policies are a useful tool to notify employees of performance problems and provide them an opportunity to improve. But they should not erode an employer’s ability to terminate employment at-will. You do not want to be in the position of the chair umpire who has to suffer a heightened level of abuse to remove a bad employee.
Kenneth Winkler, a shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.
