Put an End to “Progressive” Discipline

Jathan Janove 

As a former labor and employment law attorney, I’ve taken issue with the popular employee disciplinary tool commonly referred to as “progressive discipline.” In my view, it’s a pernicious contradiction in terms. Here’s what I published on this topic with SHRM.

I advocate replacing conventional employee disciplinary policy with the following three communication tools:

1. The “Same Day Summary.” The SDS briefly summarizes what the writer believes are the key takeaways from a meeting or discussion just held. SDS’s are strategic. They capture what the writer thinks should be confirmed and preserved in writing.

2. The “No-FEAR Confrontation.” This technique has four components. The first is Frame – you briefly and directly state the problem; no beating around the bush. Next, you go into active listening mode using your “EAR” – Explore the other person’s view, get them to Acknowledge that you understand him/her, and then and only then Respond with your point of view.

3. The “Crossroads Conversation.” You make it clear to an employee that there are only two paths. Either (a) the employee makes the necessary change; or (b) he/she leaves the organization.  

In this column, I’ll apply these tools in a law firm setting.

Dealing with problematic associate attorney behavior

During my former career, I served stints as managing partner, which sometimes included dealing with employee disciplinary matters. Here’s a real example with names and facts changed to protect confidentiality. 

We employed a bright, ambitious young attorney “Sarah.” By all accounts, she possessed the necessary legal chops. However, as managing partner, I began to receive complaints from firm partners that they had trouble getting ahold of her and that often her work was turned in last minute, which created pressure and problems for them. I also received complaints from staff members that Sarah had a temper, especially when deadlines were tight. They said she would get visibly angry, and staff would feel intimidated.

I sat down with Sarah in my office and began with Frame. “Sarah, I have received complaints about you from partners and staff members.” I then summarized these complaints as briefly and succinctly as I could.

Next, I shifted into EAR. “What are your thoughts Sarah?” I explored her view and perspective and had her acknowledge that I understood her, “If I understand you correctly Sarah . . ..” 

For my response, I brought in the Crossroads. I explained that to be a successful associate attorney at our firm, three characteristics were non-negotiable:

• First rate legal work;
• Zealously responsive to internal and external clients (I identified our partners as the “internal clients”); and 
• Treats everyone with respect at all times (with emphasis on “all times.”)

Although Sarah had responded that she was unaware of the problems and was disappointed no one had spoken to her directly, she committed to address them in a constructive way. 

Based on her response, I said, “That’s great, Sarah, I appreciate it. To keep us on the same page, I’m going to send you a short summary of what I consider the key points of our conversation. Let me know if I miss anything.”

Here’s the Same Day Summary I sent her:

To: Sarah

From: Me 

Today’s Date

Subject: Expectations of associate attorneys 

Hi Sarah,

Here’s my summary of key takeaways from today’s discussion. Let me know if I missed anything. I shared with you:

• Complaints I received from partners about difficulty getting ahold of you on a timely basis and that your work often comes in last minute causing problems for them.

• Complaints from staff that at times you become visibly angry, often when there are deadline pressures, and that staff members have felt intimidated.

• What I consider the three fundamental, non-negotiable characteristics of a successful associate attorney at our firm.

• First rate legal work;
• Zealously responsive to internal and external clients; and
• Treats everyone with respect at all times.

• All partners agree that you possess the legal chops. It’s the other two characteristics that need work.

Although you expressed some surprise and disappointment that no one had spoken to you directly, you confirmed with me that you will address these issues in a constructive way and work diligently toward ensuring that all three characteristics are met. 

I mentioned I’ll check in with others after about 30 days and circle back to you. 

Thank you for your commitment.

Best,

Jathan

Note to readers 

Since applying these three tools and teaching and coaching them with others, I’ve observed the following results:

• In most cases, “Sarah” rises to the challenge and the intervention is a success.

• When “Sarah” doesn’t, the three tools set up a respectful, dignified, and well-supported separation of employment. It’s not that Sarah is a bad person or that she deserves to be punished. It’s simply that she’s not able or willing to provide what’s necessary for her position and she therefore has to be replaced by someone who will.

I welcome any questions, comments, or challenges you have, including if there’s a scenario to which you’d like me to apply this methodology. 

Give the three tools a chance. I predict you’ll never go back to that “1^st warning; 2^nd warning; final warning” nonsense.

Jathan Janove is a former state bar “Employment Law Attorney of the Year,” author of Hard-Won Wisdom: True Stories from the Management Trenches (HarperCollins 2017), Master Coach & Practice Leader with Marshall Goldsmith Stakeholder Centered Coaching®, and adjunct professor, University of California San Diego Masters Series.