The Best Defense is a Great Offense Presented by James K. Cowan, Jr Kraft Drive, Suite 1000 Blacksburg, Virginia Phone

Transcription

1 The Best Defense is a Great Offense Presented by James K. Cowan, Jr Kraft Drive, Suite 1000 Blacksburg, Virginia Phone James.Cowan@leclairryan.com

2 Important for HRCI Credits You must be logged in individually both via computer and via the teleconference for the duration of the event in order to qualify for the credits. (Sometimes two attendees will share an office and watch together that will only allow credit for the person who logged in. If you are not, please login now individually to appear on the attendance report. At the end of the seminar, send an to if you need the HRCI certificate. It will be sent after confirmation of attendance next week.

3 Today s presenters and some notes... Jim Cowan LeClairRyan Janet Crawford Extra Ordinary Living Welcome. With the high number of attendees, please note all lines have been muted for the event. Q&A can be posted at the right of your screen, but any questions (time permitting) will be addressed at the end of the event. If using Q&A please send to both the host and the presenter. You can send direct questions (including request for copy of slides) to seminars@leclairryan.com with Best Defense in the subject for reply after the event.

4 May I see you in my office? : What to Do When it is Time to Move On

5 Ending Employee Relationships Legally Clear Understanding & Knowledge Will Allow You To: Avoid Common Pitfalls Recognize When You Are Encountering A Complicated Issue That Requires Coordination With Employment Law Counsel Federal And State Employment Laws Family and Medical Leave Act (FMLA) Americans With Disabilities Act (ADA)

6 Employee Discipline & Discharge Increasing Numbers of Employees Are Filing Lawsuits For Discipline & Discharge Most Common Reason: Discrimination They Are Seeking Hundreds of Thousands of Dollars In Damages BE PROACTIVE

7 Employee Discipline & Discharge Things To Remember Most Employees Do Not Become Unacceptable Overnight Documentation And Response To Substandard Performance Should Be Progressive & Consistent Advise Employees of Their Deficiencies On An Ongoing Basis BE FAIR

8 Employee Discipline & Discharge Things To Remember Progressive Discipline: Provide Employees With Written Guidance Addressing Specific Deficiencies Explain To What Is Expected Explain What Is Required To Improve Their Performance Give Them A Set Amount of Time To Reach Their Goal Document Employee Performance In A Progressive Manner If Performance Is Substandard: Tell The Employee And Make a Note To Their File Using Objective Language

9 Employee Discipline & Discharge Recommendations Provide Employees With Honest and Objective Annual Performance Evaluations Have Them Review & Sign Consider Agreements That Provide For Mediation and/or Binding Arbitration In Lieu of Litigation DANGER LITIGATION ZONE Remember What Is Said & Written By Managers Could Be Broadcast To The EEOC or a Jury TRAIN YOUR MANAGERS

10 Making The Decision To Terminate Make An Informed Decision Based On Facts Not Inferences, Suspicion Or Emotion Document Reasons For Your Decision Legitimate, Non- Discriminatory and Fair Conduct Exit Interview Explore Employee Dissatisfaction With The Company What Happened To Joe? He No Longer Works For The Company? Carefully Consider What Will Be Relayed to 3rd Parties Regarding Decision To Terminate

11 The Six Danger Signals in a Termination Decision There are six facts which should "flag" for you that a termination decision carries a higher-than-usual risk of litigation. You need to be prepared to confidently address each of these issues when they arise.

12 Making The Decision To Terminate High Risk Areas 1.) Long Service Record 2.) Lack of Written Documentation 3.) Disparate Treatment 4.) History of High Performance Evaluations 5.) Sudden Drop In Performance Evaluation 6.) Failing To Follow Company Policy The Longer An Employee Has Worked For a Company, The More Sudden & Problematic Termination Will Appear Personnel Files That Do Not Support A Termination Decision Or Give a Clear Reason For Termination Appear Suspect Terminating One Employee When Same Actions Were Performed By Another Employee Who Was Not Terminated Avoid Temptation of Giving Glowing Evaluations To Marginal Employees This Will Make Discipline And Termination More Difficult Sudden Drops In Evaluation Just Prior To Termination Will Come Across As Fabricating Reasons For Dismissal Neglecting Company Policy Will Undermine Legitimate Reasons For Termination

13 Treat Termination Seriously Always Have A Witness Present: Be Able To Corroborate What Took Place Don t Apologize: Give Employees The Real Reason For Termination Document, Document, Document: Create A Written Record of The Meeting Be Suspicious Of Former Employees Who Request Letters of Recommendation After Termination Glowing Letters of Praise For Formerly Marginal Employees Can Backfire Forward Requests For Recommendations To HR To Ensure Compliance With Company Policy

14 TERMINATION CHECKLIST All persons with knowledge of the alleged incident or situation, including the affected employee have been interviewed. The relevant facts and allegations are documented in the personnel file. The following company polices apply: a. b. (This is especially important where they may be eligible for FMLA leave or the absence is related to a potential disability, but more on that later.) Applicable policy(ies) were posted or provided to employee. (i.e., was the employee on notice of the policy and consequences for violation?)

15 TERMINATION CHECKLIST (cont.) I have reviewed all relevant documents and records including: a. company policies and procedures b. previous disciplinary documents c. performance evaluations d. statements from persons with knowledge of facts e. reports from investigator, if any f. personnel file(s) g. pay history This decision is consistent with how other employees have been treated under similar circumstances. (You must be consistent with past practice, or explain difference at the time). If employee previously disciplined, he/she has had ample opportunity to remedy the problem.

16 TERMINATION CHECKLIST (cont.) Do any mitigating circumstances exist? If yes, my decision reflects their impact. Approval of decision from higher levels of management, the human resources department, or counsel, as applicable, has been obtained. I have asked myself the following question: Would a neutral person (i.e. judge, jury, or my mother) conclude that the company's treatment of this employee was absolutely fair? I have considered whether it is appropriate to enter into a separation agreement with the employee in which the employee receives some severance, perhaps in exchange for a release of all claims against the company and its managers.

17 Unemployment Claims The Manner In Which Terminations Are Handled May Have An Effect On Employee Eligibility For Unemployment Compensation Excessive, Inefficient Turnover Can Have a Significant Economic Impact On Your Business

18 2 Questions To Ask Before Termination 1. Is this individual Eligible For Unemployment Benefits? A. How Long Was He/She Employed By Our Company B. Has He/She Been Seeking Employment Since Being Discharged From My Company? C. Reason For Discharge: Incompetence v. Misconduct Misconduct: Deliberate Violation of a Legitimate Rule or In Absence of a Rule, Conduct Which Manifests A Willful Disregard of Duties and Obligations Owed To the Employer Employer Has Burden of Proving Misconduct: Allegations of Misconduct Must Be Supported With Documentation

19 FMLA & ADA

20 FMLA and ADA Traps For The Unwary Many Terminations That Come Back To Bite Employers Involve Situations Where FMLA and/or ADA Implications Were Ignored or Misjudged Avoiding These Claims Requires Making Sure They Are On The List of Policies You Consider In Your Termination Checklist Even If The Employee Is Not On FMLA Leave And Hasn t Requested Disability Accommodation

21 Family and Medical Leave Act Managing FMLA Leave: 1. Do You Have To Provide FMLA Leave? 2. Is The Employee Eligible For FMLA Leave? 3. Does the Absence Qualify For FMLA Leave?

22 Family and Medical Leave Act FMLA Applies To Your Company If Your Company Employs 50 Or More Employees Within a 75-Mile Radius of Any of It s Worksites For At Least 20 Weeks During The Current Or Preceding Calendar Year

23 FMLA Eligibility Requirements 1. Must Be Employed By The Employer For At Least 12 Consecutive Months Prior To Requesting Leave 2. Must Have Performed At Least 1,250 Hours of Service During The 12 Month Period Immediately Preceding The Commencement of Leave 3. Must Be Employed At Work Site Where 50 Or More Employees Are Employed By The Employer Within 75 Miles of The Work Site

24 Is Employee s Leave Covered By Statute? 12 Weeks of Leave Permitted By FMLA For One or More of Following Reasons: 1. Birth of Baby Entitlement To Leave Expires 12 Months After Birth of Child 2. Adoption of Child or New Responsibility For Foster Child 3. Serious Health Condition Rendering Employee Unable To Perform Job 4. Care of Spouse, Child Or Parent With A Serious Health Condition 5. Military Family Leave

25 Employee Leave Serious Health Condition Definition Of Serious Health Condition -- Illness, Injury, Impairment or Condition That Involves A Period of Inpatient Care In A Hospital Or a Period of Incapacity Requiring an Absence From Work of More Than 3 Consecutive Calendar Days, That Also Involves Continuing Treatment By A Healthcare Provider Period of Incapacity Due to Pregnancy Or For Prenatal Care

26 FMLA Provisions For Leave FMLA Provides For Maximum 12 Weeks of Leave Per Year (or up to 26 weeks for care of a covered servicemember) Leave Must Be Applied Consistently & Fairly to All Employees Use a Forward Looking calendar year, which is defined as a: 12-Month Period Measured Forward From Date Employee s Leave Period Begins Many problems we see in terminations result from: Improper calculations of leave entitlement expiration or coverage Mgt. not realizing that an absence was related to an FMLA qualifying reason

27 Returning To Work After Leave Determining Employee Fitness Under FMLA Employers May Uniformly Require Certification From Employees Healthcare Providers Confirming They Are Able To Resume Work Fitness For Duty Certification Must Be Limited To Specific Health Condition That Resulted In Employee Taking Leave Only Need A Simple Statement Employer Cannot Require 2 nd or 3 rd Certification

28 Returning To Work After Leave Obligation To Offer Light Duty? Employers May Offer Light Duty To FMLA Eligible Employees As An Alternative to Time Off But Are Not Required To Do So Under FMLA Employees With Serious Health Conditions That Would Entitle Them To FMLA Leave May Not Be Required To Accept A Light Duty Job That The Employee Is Capable of Performing in Lieu of Taking FMLA Leave

29 Maintaining Benefits While Employees Are On Leave FMLA Leave May Not Result In Loss of Benefits Accrued Employee May Not Be Required To Re-Qualify For Benefits Existing Before FMLA Leave Was Exercised Health Coverage Must Be Continued While Employee Is On Leave

30 Maintaining Benefits While Employees Are On Leave With Regard To Pension and Retirement Plans Any Paid FMLA Leave Must Be Treated As Continued Service There Should Be No Break in Service From Vesting and Eligibility Services But Unpaid Leave Does Not Accrue Hours of Service

31 Enforcing Attendance While Employees Are On Leave FMLA Cannot Be Counted As An Absence Under A No-Fault Attendance Policy But Generally You May Enforce Your Leave Reporting, Call-In, Moonlighting And Related Policies Applicable To Other Employee Absences Mary Present Mark Present Mindy Present Joe - Absent

32 Americans With Disabilities Act Applies To Employers Who Employed 15 Or More Employees For 20 Weeks During the Current or Preceding Calendar Year Protects Any Employee or Applicant Who is A Qualified Individual With A Disability Qualified : Disabled Within The Meaning of The ADA Possesses Requisite Qualifications For Position Can Perform Essential Functions of Employment Position With or Without Reasonable Accommodation

33 Leave Under The ADA Requires Employers To Reasonably Accommodate Known Physical or Mental Limitations of Qualified Individuals With Disabilities Reasonable Accommodation: Any Change in Application of Process or Work Environment That Enables Disabled Person To: 1.) Perform Essential Functions of The Job 2.) Enjoy Equal Benefits and Privileges of Employment 3.) Be Considered For Available Position

34 Solutions For Accommodating Disabled Employees Provide Additional Unpaid Leave For Necessary Medical Treatment or Recovery Might Mean Making Adjustments To Leave Policies As a Reasonable Accommodation Modified Work Schedule Where Medically Necessary For a Period of Time Employers Are NOT Required To Provide Accommodations That Place Undue Hardship On The Employer

35 BUT Undue Hardship Is Harder Than You Think Definition: Action Requiring Significant Difficulty Or Expense Factors To Consider: 1. Nature & Cost of Accommodation Needed 2. Overall Financial Resources of Employer 3. Size, Organization & Function of Employer s Workforce 4. Number of Facilities Operated By The Employer 5. Overall Resources of The Facility(ies) Involved 6. Intrusiveness of The Accommodation

36 How Much Leave Is Available Under The ADA?? ADA Places No Specific Restrictions On Maximum Leave Available As A Reasonable Accommodation Must Provide As Much Leave As Necessary To Recover Without Creating Undue Hardship on Employer Does Not Require Employer To Wait Indefinitely If Employee s MD Cannot Determine Return To Work Date: Employer Generally May Discharge Employee OR May Be Required To Offer Employee a Reasonable Accommodation which allows return

37 Enforcing Attendance Policy For Employees With Disabilities ADA: Employers Are Permitted To Establish Attendance And Leave Polices That Are Uniformly Applied To All Employees, Regardless of Whether They Have A Disability EEOC: If Such Policy Leads To Discipline Resulting From Absence May Be Reasonable To Forgo Discipline By Granting Employee More Leave Than Granted Under The Policy (Can Be Unpaid)

38 Reinstating Employees When ADA Leave Ends Under The ADA Employers Must Reinstate A Disabled Employee Who Can Perform The Essential Functions of the Job After Leave Unless Doing So Would Be an Undue Hardship If FMLA and ADA are running concurrently, consider which reinstatement rights apply The Employee Must Be Re-Instated To The Same Job Held Prior To Leave, Unless Doing So Would Cause Undue Hardship

39 Questions? Contact me: James K. Cowan, Jr Kraft Drive, Suite 1000 Blacksburg, Virginia Phone:

40 Thank You

41 The Best Defense is a Great Offense Janet Crawford Extra Ordinary Living.embracing sustainable change Executive Coach janet@4extraordinaryliving.com

42 Paying the Price: Turnover Tangible costs related to separation, vacancy and replacement costs Intangible costs related to uncompensated increase in workloads, stress and tension affecting morale Cost of turnover: 30-50% of annual compensation for entry level employees 150% for middle level employees

43 Employee Engagement Gallup Q I know what is expected of me at work. 2. I have the materials & equipment I need to do my work right. 3. At work, I have the opportunity to do what I do best every day. 4. In the last 7 days, I have received recognition or praise for doing good work. 5. My supervisor, or someone at work, seems to care about me as a person. 6. There is someone at work who encourages my development.

44 Employee Engagement Gallup Q At work, my opinions seem to count. Continued 8. The mission or purpose of my company makes me feel my job is important. 9. My associates or fellow employees are committed to doing quality work. 10. I have a best friend at work. 11. In the last 6 months, someone at work has talked to me about my progress. 12. This last year, I have had opportunities at work to learn and grow.

45 Paying the Price: Disengagement Research findings: 29% actively engaged 55% not engaged 16% actively not engaged Costs of the disengaged: $3400 for every $10,000 Opportunity: 10% increase in engagement leads to 2% improvement in performance

46 Be a Great Manager Believe in the inherent desire of your employees to do a good job Know your job is to help them succeed Recognize that you are always on stage Realize the ROI with each interaction you have with your employees

47 Maximize the ROI.. Know your employees By name Something personal Their strengths Where they want to be in 3 years Set clear expectations State and explain Confirm understanding

48 Maximize the ROI. Give the gift of feedback Praise in public and in private Recognize the what and the how Seize informal opportunities; create formal When issues arise, intervene early

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50 Maximize the ROI. Give the gift of feedback Praise in public and in private Recognize the what and the how Seize informal opportunities; create formal When issues arise, intervene early

51 Coach approach to the Crucial Conversation The essence is possibility for growth and improvement Opportunity to learn by asking open ended questions and listening

52 Prepare Just the facts; tease out the emotions and opinions Hone the message Identify the acceptable behavior Set clear expectations and establish time frame Identify helpful tools Establish follow-up plan Document.

53 Having the Conversation When: suggest later part of day/shift; schedule an hour Eliminate distractions; sit side-by-side Sandwich approach: positive, constructive, positive Clarify the purpose and intention of the meeting Ensure understanding through questions Intentional closure, stating follow-up and obtaining buy-in

54 Be mentally ready Helpful tips Be caring: master the first 30 seconds Use encouraging language Let silence speak Breath and listen Touch base within 3 days

55 Use Encouraging Language Should, have to, must Need to Can t Always, never But Try Yeah, uh-huh Nah, nope, unh-unh Just; maybe; kind of, sort of; you know; Don t do that Why Replace With Choose, desire, want It s important Choose not to Sometimes, often, seldom And Intend, aim Yes No (eliminate) Let s do this What, how, explain that a little more

56 Questions? Contact me: Janet Crawford nd St. SW Roanoke VA 24016

57 Thank you!