Best Practices for Fund Managers to Ensure a Fair Process When Disciplining Employees (Part Three of Three)

Once an adviser has fully investigated employee wrongdoing, it must decide whether and how to impose discipline. To promote a sense of fairness – and meet employment law requirements in certain jurisdictions – the procedures governing those decisions must include some form of due process for the employees involved. Although the context does not require the level of protections in the Fourth and Fourteenth Amendments of the U.S. Constitution, there does need to be regularity and established procedures for how the adviser will make these important determinations. While those procedures will differ between advisers and jurisdictions, common elements will include notice to the employee; a set time frame for decision-making; a decision-maker with appropriate insight and authority; a range of possible punishments; and the use of objective criteria to impose punishment. This final article in our three-part series on employee discipline identifies the elements of a disciplinary process and how managers can promote fairness and due process. The first article discussed the value of setting expectations for discipline in advance and how advisers can apply discipline consistently in the face of inconsistent local employment laws. The second article addressed techniques for gathering evidence that can effectively be used to support a disciplinary action, including the thorny issue of protecting privilege while building a record. For more on important employment considerations for investment managers, see “Lessons on Separation Agreements That Fund Managers Can Glean From Recent SEC Action” (Feb. 2, 2017); and “Trending Issues in Employment Law for Private Fund Managers: Non-Compete Agreements, Intellectual Property, Whistleblowers and Cybersecurity” (Nov. 17, 2016).

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