You catch a not-so-good employee sleeping on the job, and you want to fire him. You call your attorney, and the attorney asks how you have handled similar situations in the past. You tell the attorney it has been a mixed bag, but usually, employees caught sleeping on the job have been given a final warning. The attorney tells you “consistency is everything” in an employment case, and advises that you should not terminate the employee, noting “too much risk.”

This sort of situation plays out quite often under labor contracts where the worry is that a labor arbitrator will reinstate a grievant if there is evidence the employee is being treated more harshly than prior employees who committed similar offenses. Likewise, in employment-related lawsuits, there is concern a jury will find discrimination, and award significant damages, if there is evidence the employee was treated more harshly than others who committed a similar offense.

If your past practice has been more lenient (bad), what do you do? Are you stuck with it forever? Unless you have contractually committed to a certain level of discipline for particular offenses, the answer is “no.” You can generally change a bad past practice with respect to discipline, or performance counseling, but you need to do it prospectively. For example, if sleeping on the job is a concern, and you want to start treating it as a dischargeable offense, you may want to consider posting a memo to all employees that says something like:

“Sleeping on the job is a very serious offense; it interferes with production, and it potentially jeopardizes the safety of everyone in the workplace. For that reason, going forward, any employee found sleeping on the job will be subject to immediate discharge.”

If you have been lax about requiring a particular level of job performance, deal with that prospectively:

“All operators are required to wear safety goggles in working areas on the plant floor. Any employee who violates this expectation will be subject to immediate discharge.”

Prospective notice about a new, tougher approach to discipline/performance will go a long way toward helping you alleviate concerns about a bad past practice.