Find a Dentist

Employee Discipline and Protections

Home » Membership » Practice Management » PALMM » Employee Discipline and Protections

Employee Discipline and Protections

Discipline Policies

Employee discipline policies are critical for ensuring lawful, consistent, and effective workplace management. To minimize legal exposure and foster a fair working environment, Pennsylvania employers—especially those operating small healthcare practices like dental offices—should design, implement, and enforce discipline policies with careful attention to clarity, consistency, and compliance with evolving employment law.

Disciplinary Process and Enforcement

Before imposing discipline, employers should ensure that:

  • The employee was aware of the relevant rule or standard.
  • The rule was applied consistently to similarly situated employees.
  • The discipline is not based on protected conduct (e.g., complaints, leave use, whistleblowing).
  • The process is documented contemporaneously and accurately.

Discipline should be timely, respectful, and handled in a private setting. Documentation should include:

  • The rule or policy violated.
  • A factual description of the misconduct or performance issue.
  • Any prior counseling or warnings.
  • The corrective action taken and the consequences of further violations.

Employees should be given an opportunity to respond in writing, and follow-up meetings should be scheduled to assess progress and reinforce the employer’s intent to improve performance rather than simply punish.

Performance-Based Discipline

When addressing substandard performance, employers should use objective and measurable criteria whenever possible. Subjective assessments (such as attitude or professionalism) are permissible but should be supported by examples. A Performance Improvement Plan (PIP) can be a valuable tool and should include:

  • Specific areas requiring improvement.
  • Clear performance expectations.
  • Timelines and benchmarks for measuring progress.
  • Resources or support provided by the employer.
  • Consequences for failing to improve.

Misconduct and Policy Violations

For misconduct or violation of company rules, discipline should follow a prompt and thorough internal investigation. Employers must distinguish between on-duty and off-duty conduct and only discipline off-duty activity if it directly affects the business or violates a lawful policy.

Common disciplinary measures include:

  • Verbal counseling: For minor, first-time issues.
  • Written warning: For recurring or more serious concerns.
  • Performance Improvement Plan: For performance deficiencies requiring structured correction.
  • Suspension (paid or unpaid): Often used during investigations.
  • Demotion or reassignment: When appropriate, but be aware of wage/hour and discrimination risks.
  • Termination: Reserved for severe violations or after other steps have failed, always with thorough documentation.

Employers must not retaliate against employees for engaging in protected activity, such as:

  • Filing complaints of discrimination or harassment.
  • Requesting leave under the FMLA or similar laws.
  • Participating in investigations or litigation.
  • Exercising rights under labor laws, such as discussing wages or working conditions.

Failure to follow disciplinary policies consistently or to act promptly can lead to claims of discrimination, retaliation, or wrongful termination. Proper documentation, fairness, and a focus on improvement rather than punishment are key to reducing risk and maintaining a productive workplace.

Employee Protected Activity

Both federal and Pennsylvania law prohibit employers from retaliating against employees who engage in “protected activity.” Protected activity generally refers to an employee’s lawful exercise of rights under employment statutes—whether by filing complaints, participating in investigations, or otherwise opposing unlawful practices. Employers must be mindful that retaliation claims often succeed even where the underlying complaint lacks merit, provided the employee acted in good faith and met statutory participation or opposition requirements.

Federal Protections

At the federal level, most major employment laws include anti-retaliation provisions. These include, but are not limited to:

  • Title VII of the Civil Rights Act of 1964: Prohibits retaliation against employees who oppose discrimination or participate in Title VII proceedings. 42 U.S.C. § 2000e-3(a).
  • Fair Labor Standards Act (FLSA): Prohibits retaliation against employees who file wage and hour complaints or cooperate with Department of Labor investigations. 29 U.S.C. § 215(a)(3).
  • Family and Medical Leave Act (FMLA): Prohibits interference with or retaliation for the exercise of family or medical leave rights. 29 U.S.C. § 2615.
  • Occupational Safety and Health Act (OSH Act): Prohibits retaliation against employees who report unsafe working conditions or file OSHA complaints. 29 U.S.C. § 660(c).
  • National Labor Relations Act (NLRA): Protects employees engaged in concerted activity for mutual aid or protection, including union and non-union workers. 29 U.S.C. § 157.

To establish a prima facie case of retaliation under these statutes, an employee must typically demonstrate: (1) engagement in protected activity; (2) an adverse employment action; and (3) a causal connection between the two. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).

Pennsylvania Protections

In Pennsylvania, the Pennsylvania Human Relations Act mirrors Title VII and similarly prohibits retaliation against individuals who oppose discriminatory practices or participate in proceedings under the Act. 43 P.S. § 955(d). The PHRA’s retaliation protections apply to complaints of discrimination based on race, color, religion, sex, national origin, age, and non-job-related disability.

Pennsylvania also recognizes retaliation claims under:

  • The Pennsylvania Whistleblower Law, 43 P.S. §§ 1421–1428, which protects public employees and employees of public employers or entities receiving public funds from retaliation for reporting waste, fraud, or abuse. The statute covers reports made in good faith to the employer or a public body.
  • Common Law Wrongful Discharge: In limited circumstances, a wrongful termination claim may be sustained where the discharge violates a clear mandate of public policy—such as firing an employee for reporting illegal conduct. See Field v. Philadelphia Elec. Co., 565 A.2d 1170, 1179 (Pa. Super. Ct. 1989).

Protected activity may take many forms, including:

  • Filing an internal or external complaint of discrimination, harassment, or wage violations;
  • Participating in an EEOC, PHRC, OSHA, or Department of Labor investigation;
  • Requesting a reasonable accommodation for disability or religious observance;
  • Reporting illegal conduct, safety violations, or financial improprieties;
  • Discussing wages or workplace conditions with co-workers (protected under the NLRA);
  • Testifying in support of another employee’s claim or cooperating in legal proceedings;
  • Objecting to discriminatory or retaliatory practices, even if informally.

Employers must recognize that adverse actions taken shortly after an employee engages in protected activity may support a causal inference of retaliation. See Moore v. City of Phila., 461 F.3d 331, 352 (3d Cir. 2006).

Polygraphs for Employees

Pennsylvania employers may not require an applicant to take a polygraph test as a condition of employment. Employers who violate this prohibition risk facing criminal penalties. (18 Pa. C.S.A. § 7321(a).)

Medical Marijuana at Work

Pennsylvania’s Medical Marijuana Act (Act) permits the use and possession of medical marijuana in authorized forms by patients with a practitioner’s certificate who suffer from a serious medical condition. Possession is lawful for patients and caregivers who have a valid identification card. 35 Pa. Stat. Ann. §§ 10231.301, 10231.303.

Accordingly, no employer may discriminate against an employee solely on the basis of the employee’s status as an individual who is certified to use medical marijuana. 35 Pa. Stat. Ann. § 10231.2103(b).

However, the Act does not require an employer to accommodate the use of medical marijuana in the workplace, limit an employer’s ability to discipline an employee for working under the influence of medical marijuana in the workplace, or require an employer to commit an act in violation of federal law.

While the Act is silent as to whether an employer may take adverse action against an employee for testing positive for marijuana, employers should exercise caution in disciplining any employee whose positive drug test is the result of using medical marijuana.

The Employment Law Desktop Reference is for general information only. It is not legal advice for specific situations or for decisions, plans, or management by any employer in any circumstances. The law firm of Eckert Seamans Cherin & Mellott, LLC is available for specific advice for PDA members at discounted hourly rates and with an initial one-hour consultation at no charge to the PDA member. Please contact Bridget E. Montgomery, Esquire by email at bmontgomery@eckertseamans.com or by telephone at 717-237-6054 to schedule an initial consultation.