HIRE THE RIGHT ONE EFFECTIVE TERMINATION PROCEDURES

Transcription

1 HIRE THE RIGHT ONE EFFECTIVE TERMINATION PROCEDURES SDRA Small Business Survival Seminar Christopher E. Hoyme Jackson Lewis LLP Regency Circle Suite 400 Omaha, NE (402) Jackson Lewis LLP

2 Hiring

3 Six Elements of a Recruiting and Hiring Plan 1. IDENTIFY THE ESSENTIAL FUNCTIONS OF THE OPEN POSITION AS WELL AS THE SKILLS AND QUALIFICATIONS REQUIRED TO FILL IT WITH A QUALIFIED CANDIDATE.

4 Six Elements of a Recruiting and Hiring Plan 2. ADVERTISING AND RECRUITING FOR QUALIFIED APPLICANTS.

5 Six Elements of a Recruiting and Hiring Plan 3. SCREENING POTENTIAL CANDIDATES ONCE RESUMES AND APPLICATIONS ARE RECEIVED.

6 Six Elements of a Recruiting and Hiring Plan 4. INTERVIEWING FOR A "FIT."

7 Do Ask About prior employment to develop a general work attitude.

8 Do Ask Whether the applicant is at least 18 years old.

9 Do Inform applicant, if hired, they must establish identity and authorization to work in the U.S.

10 Do Require the applicant to fill out an application form completely, to sign and date the application, and to specify the position(s) applied for.

11 Do Maintain an applicant flow chart that provides a record of applicants. This should be retained in a separate file apart from employment folders.

12 Do Document objective reasons for not hiring an applicant.

13 Do Not Make any notation or comment on the application that indicates the age, sex, race, color, or physical disability of the applicant. Application

14 The Wrong Way!

15 Do Not Ask Females different questions than males.

16 Do Not Ask Whether the applicant has been arrested.

17 Do Not Ask About the applicant s credit references or history, or about home ownership.

18 Do Not Ask Questions regarding religious beliefs, affiliation or holidays, or about the applicant s church or pastor.

19 Do Not Ask An applicant s age, either directly or indirectly.

20 Do Not Ask For maiden name. About marital status, regardless of gender.

21 Do Not Ask About pregnancy and family plans. About spouse s occupation or place of employment. Names and ages of children.

22 Do Not Request or require a photograph with the application.

23 Do Not Ask About an applicant s height or weight as this is seldom relevant.

24 Do Not Ask About political affiliations, union memberships or sympathies.

25 Do Not Ask If the applicant can read, write or speak a foreign language, unless clearly necessary to perform the job.

26 Interviewing and Hiring Under the Americans with Disabilities Act

27 Do Attach job description to application form with information about specific job functions or describe during the interview. Ask if applicant can perform duties with or without reasonable accommodation.

28 Do Provide information on the employer s regular work hours, leave policies, and attendance needs, and ask if applicant can meet the requirements.

29 Do Obtain previous work attendance information on application, during the interview, or in reference checks, but questions should not refer to illness or disability.

30 Do Not Ask Whether the applicant ever suffered from or was treated for conditions or diseases presented as a checklist. The applicant to list conditions or diseases for which he/she has been treated in the past.

31 Do Not Ask Whether applicant has ever been hospitalized and if so, for what condition(s).

32 Do Not Ask Whether the applicant has ever been treated by a psychiatrist or psychologist. Whether they have been treated for any mental condition.

33 Do Not Ask Whether there is any healthrelated reason the applicant may not be able to perform the job they are applying for. Whether the applicant has had a major illness in the last years.

34 Do Not Ask The applicant how many days they were absent from work because of an illness last year.

35 Do Not Ask Whether applicant has any physical defects or impairments which preclude him/her from performing certain tasks.

36 Do Not Ask Whether the applicant has ever been treated for drug addiction or alcoholism.

37 Do Not Ask Whether the applicant has ever filed a workers compensation claim.

38 Six Elements of a Recruiting and Hiring Plan 5. BACKGROUND CHECKS.

39 Six Elements of a Recruiting and Hiring Plan 6. THE SELECTION OF A CANDIDATE.

40 EFFECTIVE TERMINATION PROCEDURES

41 General Considerations All Discharges a) Were any representations made to the person that they were not employed as an at-will employee? What were the representations? b) Was the employee specifically advised that the employment relationship could be terminated at any time and for any reason? Was a disclaimer ever signed?

42 General Considerations All Discharges c) Did the person give up other employment opportunities by accepting his or her present position? d) Is there a written offer of employment, a letter confirming the terms of the employment, or a contract of employment? e) What is the employee s tenure? If the person is a long-term individual (e.g., ten or more years), does the employer owe him or her some special consideration? Review with Corporate

43 General Considerations All Discharges f) Will the termination of the employee prevent the partial or full vesting of benefits [e.g., pension, 401(k)] in the immediate foreseeable future? g) What is the effect of the termination upon the morale of the department, location, or division? h) What is the effect of the termination on other business-related matters?

44 General Considerations All Discharges i) Did the employee s legally protected status (such as race, color, creed, sex, national origin, age) arguably have anything to do with the decision and/or will it appear that recent employment decisions are adversely affecting a protected class? j) Has the employer taken into account any necessary requested reasonable accommodation for the person s religion or disability? k) Has a thorough investigation been conducted so that the decision is based upon facts and not perception, hearsay or speculation?

45 General Considerations All Discharges l) Has the employee been given the opportunity to relate his or her side of the story? m) Are there extenuating circumstances or other mitigating factors which justify a lesser penalty? n) Is the decision timely? o) Should you suspend the employee, pending further investigation?

46 General Considerations All Discharges p) Is this action consistent with prior incidents of a similar nature? q) If the answer to any of these questions makes the decision to terminate suspect, who else should be consulted within the employer s organization?

47 Considerations For Disciplinary Discharges a) Was the violated rule known to the employee? Was the rule published? Was the practice consistent with the rule? b) Are the disciplinary steps that have been taken outlined in a progressive discipline policy (i.e., oral, written, final, written)? c) Did the employee have an opportunity to take constructive action?

48 Considerations For Disciplinary Discharges d) Are the witnesses credible? e) Was the information regarding the infraction obtained lawfully (e.g., drug or alcohol test, private investigator, search)? f) Is the documentation in order? g) Does the employee s overall documented record support the decision (e.g., employee just received congratulatory letter and merit raise for outstanding performance)? h) Is this action consistent with prior incidents of a similar nature?

49 Considerations For Performance Discharges a) Do the evaluations support the decision? b) Was the employee not only told of deficiencies but also advised how to improve and when he or she needed to meet expectations?

50 Considerations For Performance Discharges c) Was the employee denied requested assistance (e.g., refusal to provide training)? d) Is the articulated reason for discharge the real reason? e) Is the deficiency capable of objective measurement, or are the criticisms at least specific (e.g., bad attitude v. employee refused to assist patient or colleague )?

51 Considerations For Performance Discharges f) Does the employee s overall documented record support the decision (e.g., employee just received a merit raise)? g) Was the employee ever told that his or her failure to improve would result in termination? h) Is this action consistent with prior incidents of a similar nature?

52 Considerations for Time/Attendance Discharges a) Have you treated like situations similarly? b) Have you been consistent with your rule? c) Do different managers/departments do different things? d) Is Time/Attendance the real reason for discharge? e) FMLA/ADA?

53 Thorough Investigation Collect facts and documents Interview others Opportunity to respond Be sure employee aware of policies or expectations Afford opportunity to change Consider mitigating factors Treatment of others in similar situations

54 Prior to Discharge Document everything Be conscious of what written Read relevant policies Conduct through investigation Allow emotions to cool Consider suspension before discharge Get second opinion

55 Alternatives Voluntary resignation Separation agreement/release Demotion Transfer/reassignment Final written warning

56 Discharge Procedure Decision maker present Human Resources present Be fair but firm Be honest Be factual Do not apologize, but can acknowledge emotions

57 Questions?

58 Presented by: Christopher E. Hoyme Regency Circle, Suite 400 Omaha, Nebraska (402) (402) Direct