All materials Copyright 2011 Kopelman and Paige, P.C.. All rights reserved.

Transcription

1 All materials Copyright 2011 Kopelman and Paige, P.C.. All rights reserved.

2 This information is provided as a service by Kopelman and Paige, P.C. This information is general in nature and does not, and is not intended to, constitute legal advice. Neither the provision nor receipt of this information creates an attorney-client relationship between the presenter and the recipient. You are advised not to take, or to refrain from taking, any action based on this information without consulting legal counsel about the specific issue(s).

3 First, it s not intended to be solely a presentation The goal is to provoke discussion Please don t be shy about speaking up!

4 Most of us spend more waking time at work than anywhere else: consequently, we all have a stake in making the workplace the best (most effective and pleasant) environment it can be. Your residents depend on you and your employees for their comfort, health, and safety. Effective supervision and corrective interventions (some call it discipline) bring out the best in employees Conversely, there can be high costs for ineffective supervision or improper

5 Conflict Management Discipline/Corrective Intervention Due Process Considerations Documentation MA Personnel Records Law

6 Conflict avoidance Sounds like a good idea, but unrealistic Avoiding constructive conflict is not helpful Avoiding intervention is not an effective long-term solution Conflict prevention Prevention is not the same thing as avoidance Foster an ethical culture of mutual respect Conflict management Effectively mediating the inevitable issues that arise

7 Don t avoid the conflict, hoping it will go away Don t believe the conflict is limited to the people in conflict Don t meet separately with the people in conflict (generally)

8 Meet jointly with those in conflict: Get summaries of their positions/points of view Ground rules essential: Management won t choose sides No personal attacks No comments or interruptions

9 Solicit specific action suggestions/desired ideal end results What action would they like the other party to take Does management own some responsibility? What can the individuals: Do more of; Do less of; Stop, or; Start?

10 Seek commitment to changes necessary to resolve the conflict Assure the antagonists of your faith in their ability to work it out Set a time to mutually review progress

11 Disagreements over issues are acceptable; personality conflicts affecting the workplace are not Seek to de-personalize the conflict

12 Negative, punitive connotations Discipline systems can perpetuate this negative approach: At will status often replaced with progressive discipline and cause or just cause standards in collective bargaining agreements More protective of the employee, but still regarded as discipline, i.e. punishment Corrective intervention A different way to characterize the process May be based on the same underlying steps as progressive discipline Connotes the real underlying purpose: performance improvement

13 Primary purpose is to assist employee in improving their performance or behavior Secondary purpose is to document efforts to assist employee to justify more stringent intervention, up to termination, if the corrective efforts are unsuccessful Note, though, that certain behaviors may warrant serious intervention initially

14 Regarding the purpose of the process as punishment Looking at the process as me vs. you as opposed to we Not intervening soon enough Not discerning the root of the problem Not documenting sufficiently (or at all) Not affording due process

15 Factors Influencing/Guiding Corrective Intervention Federal and State Laws Collective Bargaining Agreements Policies and Procedures

16 Verbal counseling (may be preceded by informal, undocumented coaching) Written warning Variation: Append action plan with time line Suspension (may implicate due process) Termination (due process usually required)

17 Was the employee forewarned of the consequences of his or her actions? Are the employer's rules reasonably related to business efficiency and performance the employer might reasonably expect from the employee? Was an effort made before discharge to determine whether the employee was guilty as charged? Was the investigation conducted fairly and objectively? Did the employer obtain substantial evidence of the employee's guilt? Were the rules applied fairly and without discrimination? Was the degree of discipline reasonably related to the seriousness of the employee's offense and the employee's past record?

18 Public sector employees generally have a property interest in continued employment ; therefore, must be afforded due process before being seriously disciplined Flows from 14 th Amendment to US Constitution ( nor shall any State deprive any person of life, liberty or property, without due process of law ) Elements of due process generally: Written notice of the charges Explanation of the basis for the charges Opportunity (hearing) for employee to respond

19 No corrective intervention for unlawful or improper reasons, such as: Discrimination Retaliation In response to protected concerted (union) activities Consistency Treat like cases in a like manner Document everything carefully

20 1. Determine employee s status Civil Service Union Contract At-will 2. Review applicable documents (collective bargaining agreement, employment contract, statutes, policies) Disciplinary procedures Standard to be applied (just cause, cause, arbitrary and capricious) Appeal process

21 3. Conduct fair and impartial investigation Review evidence Interview relevant witnesses, if necessary Interview employee who is the subject of investigation If a member of a union and he/she requests union representation during interview, request must be allowed. NLRB v. Weingarten, Inc., 420 U.S. 251 (1975) If employee is the subject of a criminal investigation, employee probably shouldn t be interviewed as evidence which follows likely couldn t be used as part of criminal investigation. See Carney v. Springfield, 403 Mass. 604 (1988)

22 4. Review/consider employee s work history Length of service Prior disciplinary history 5. Evaluate seriousness of employee s conduct Consider whether laws, workplace rules, or policies were violated Determine whether poor conduct or performance was documented sufficiently Determine whether employee was warned of consequences of misconduct Review how similarly situated employees were treated in previous instances

23 6. Determine whether a pre-disciplinary hearing is required All public sector employees should be given some opportunity to answer charges against them Probationary or at-will employees not entitled to formal hearing, but may (should?) be afforded an informal predisciplinary meeting 7. Provide written notice of hearing Time and place of hearing and hearing officer/board Brief explanation of charges and a summary of the evidence upon which the charges are based, with reference to any laws, rules, or policies that allegedly were violated Employee s rights at hearing

24 8. Conduct hearing 9. Provide timely notice of decision Findings of hearing officer, including evidence relied on Laws, workplace rules or policies violated Discipline to be imposed Notice of appeal rights, if any

25 Documentation is to employment law what location is to real estate Document, Document, Document Why?: Creates credibility Shows consistency Helps to eliminate misunderstandings and disputes Confirms employer s efforts to work with the employee Dispels claims of discriminatory motives for adverse employment actions Exhibit A at trial for better or for worse

26 Coaching and counseling Policy violations Corrective Interventions Complaints Legal Issues: Injuries/Disability/Leave Harassment Discrimination Retaliation In short, EVERYTHING that may be relevant to future decisions or proceedings

27 Describe expectations and the basis for them Describe the behavior or performance issues that must change (or must continue) Include employee s explanations as to why expectations are not being met Describe action plan Goals Time frame (generally) Follow-up Describe consequences if behavior or poor performance continues

28 Employer must notify employee within 10 days of placing in the employee s personnel record any information that: is, has been used or may be used, to negatively affect the employee s qualification for employment, promotion, transfer, additional compensation or the possibility that the employee will be subject to disciplinary action.

29 G.L. c. 149, 52C Defined broadly as a record kept by an employer that identifies an employee, to the extent that the record is used or has been used, or may affect or be used relative to that employee s qualifications for employment, promotion, transfer, additional compensation or disciplinary action. Shall not include personal information about someone other than the employee if disclosure of that information would constitute an unwarranted invasion of the other person s privacy

30 Non-exhaustive list of information to be included: Employee s name, address, DOB, job title and description; Rate of pay and any other compensation; Starting date of employment; Employee s job application; Resumes or other employment info supplied by employee in response to employer s advertisement; All employee evaluations; Written warnings of substandard performance Lists of probationary periods; Waivers signed by employee; Copies of dated termination notices; Any other documents related to discipline/corrective interventions.

31 Employee review of personnel record: Written request Five business days to respond Same time limit to respond to written request for copy Employees now limited to no more than 2 personnel record reviews annually BUT review occasioned by notice of negative information does not count against this limit Employee may request removal/correction of information Personnel records law enforced by A.G.; fines ranging from $500 to $2,500

32 Think beyond the formal personnel file Case-by-case analysis of documents required Personal records ( s, notes, etc.) of supervisors arguably within scope of law if they may affect individual s employment Remember that potential use of record, not its author or original location, is critical Consider centralizing responsibility: supervisors should advise HR when adverse record is created so timely notice to employee may be given Remember to maintain medical information separately

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