By: Susan Fahey Desmond Jackson Lewis PC

Transcription

1 By: Susan Fahey Desmond Jackson Lewis PC

2 Susan Fahey Desmond is a shareholder with Jackson Lewis PC, a national labor and employment law boutique firm. Ms. Desmond is listed in Best Lawyers in America and has been named by Chambers USA as one of America s leading business lawyers. 2

3 This presentation and its accompanying materials are for informational purposes only and should not be used as a substitute for legal advice on a particular matter. No attorney client relationship is intended or implied by making this presentation. 3

4 Observe and correct employee s unsatisfactory work performance and/or violation of Employer policies Place employee on notice of the Employer s expectations Provide opportunity to communicate about performance issues Provide positive reinforcement while identifying deficiencies and providing plan for improvement

5 Continuous Performance Monitoring

6 SPECIFIC: Include objective facts, not just conclusions TIMELY: EXPLAIN: Address performance issues, both good and bad, in a timely fashion Explain your expectations to the employee EMPATHY: Don t paint the employee into a corner LISTEN: Listen and consider legitimate explanations for performance issues

7 Rating employees higher than warranted to get them higher percentage salary increases Do not over-inflate be honest Not supporting performance evaluations with objective data and facts (as opposed to conclusions) Being soft in the evaluation process by failing to address performance issues under the guise that you do not want to demoralize the employee

8 Squirreling complaints away for another day, rather than addressing them immediately Playing the doctor and making judgments about medical conditions without medical documentation Partially completing an evaluation Failing to clearly state future expectations Contradicting written review in meeting with employee Including performance problems in the evaluation never previously addressed with employee

9 Evaluate Performance, NOT the Person Use objective facts, NOT subjective conclusions Cite specific examples to support conclusions Do not speculate Do not psychoanalyze Use language that makes sense to the employee Provide suggestions and target milestones Follow up with the employee

10 Conduct in private location Be prepared to discuss examples of job accomplishments and performance deficiencies Establish goals and/or plan of action Discuss positives and ensure criticisms are constructive How can management help the employee do his/her job better? Listen to employee response, if any Have employee sign the form

11 Here is a model to explore performance problems with your employees and a set of guidelines for conducting performance discussions: Is it an ability problem? Does the employee have the skills and knowledge? Is it a clarity problem? Is employee clear on goals, objectives or targets? Is it an organizational help problem? What resources are needed? Is it an incentive problem? Do you know any underlying causes which could impact employee s motivation? Is it an evaluation problem? Is there a lack of day-to-day feedback? Is it a validity problem? Are the policies, procedures, rules or regulations appropriate? Is it an environmental problem? Is there a problem with the employee s work environment, i.e., getting along with co-workers?

12 Be specific - use examples of outstanding, improved or problem performance Ask for help in solving any problems (if appropriate) Listen empathetically Discuss ideas Decide on actions each of you will take Set a follow-up date (if appropriate) Thank employee Document the discussion (if appropriate) Follow up

13 DOCUMENT, DOCUMENT, DOCUMENT! Be sure to include: Your name The date Issue addressed Expected performance Follow up

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15 Inconsistent enforcement of policies. Outdated or ignored policies. Making excuses for some employees and holding other employees to a higher standard. Inconsistent documentation of violations. 15

16 Properly notified employees. Do your employees know the workplace rule, practice or expectation, and the consequences of violating those rules? Are your rules, practices and expectations reasonable, and do they serve a business purpose? 16

17 Perceptions of unfairness are a leading cause of litigation. Most common reason a terminated employee sues his employer is over conduct for which other employees were not terminated. Be consistent: Has this problem arisen in the past? How was it handled? Are you suddenly deciding to crack down on conduct that was previously tolerated? 17

18 Is timely, was created at time of incident. Clearly records key facts. Creates a record of the basis for the decision. Clearly and logically communicates information to the employee, as well as a future judge, jury or plaintiff s attorney. Demonstrates that the employee was treated fairly. 18

19 Uses plain, non-technical language. Avoids extreme or conclusory language. Is specific and based on verifiable facts. Is dated. Clearly identifies the author. 19

20 Remember: good documents will state your case. 20

21 Jurors expect key decisions to be documented. A lack of documentation raises red flags. 21

22 Identification of behavior or performance issue Specific timeline for performance/behavior correction Statement of managerial support Statement of consequences REMEMBER TO DOCUMENT

23 What to Document Date of writing/date of document Author of writing Recitation of what happened Rule violated Prior incidents/discussions Fact that the employee had adequate warning Corrective action to be taken Future monitoring

24 Good Practices Remove emotion from your responses Double-check for validity and accuracy If facts are in doubt, do not document Be consistent and fair With regard to the individual employee (i.e.: warnings and evaluations given to the employee should be consistent with documentation in the personnel file) Document early

25 A short can suffice or a memo which is signed by the employee to acknowledgment receipt. For instance: To: Receptionist From: Office Manager Date: February 12, 2013 Your tone when speaking on the phone with clients needs improvement. Specifically, when passing through reception today I heard you raise your voice at a client over the telephone. This is the second time in the past month I witnessed such an incident. After the first incident, I met with you and reminded you of the importance of treating clients with respect and we discussed that it is inappropriate to raise your voice at a client. Clients must be given our full attention and respect. Further instances of this nature may lead to disciplinary action, up to and including termination. Immediate and sustained improvement is required. Future instances of this nature may lead to disciplinary action including discharge.

26 Legal vs. Illegal Reasons For Terminating An Employee 26

27 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? 27

28 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? 28

29 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? 29

30 i) Is this the type of termination that might induce some colleagues to seek out a union? j) Was the individual participating in concerted activity within the meaning of the National Labor Relations Act? k) 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? 30

31 l) Has the employer taken into account any necessary requested reasonable accommodation for the person s religion or disability? m) Has a thorough investigation been conducted so that the decision is based upon facts and not perception, hearsay or speculation? n) Has the employee been given the opportunity to relate his or her side of the story? 31

32 o) Are there extenuating circumstances or other mitigating factors which justify a lesser penalty? p) Is the decision timely? q) Should you suspend the employee, pending further investigation? r) Is this action consistent with prior incidents of a similar nature? s) If the answer to any of these questions makes the decision to terminate suspect, who else should be consulted within the employer s organization? 32

33 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? 33

34 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? 34

35 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? 35

36 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 )? 36

37 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? 37

38 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? 38

39 10. Poorly drafted or inconsistently applied policies 9. Unintentional modification of at-will employment 8. Mishandling of documents and information 7. Careless treatment of associate complaints 6. Improper classification of associates 5. FMLA and ADA land mines 4. Mishandling requests for reasonable accommodation 3. Responding to complaint s without HR s help 2. Poor hiring practices 1. Failure to document! 39

40 A. Prepare for Meeting 1. Workplace Due Process 2. Final Paycheck, Benefit Calculation, etc. 3. Reason? Rehearse! 4. Appropriate Person/ Witness 5. Location/ Privacy 6. Timing of Meeting 40

41 B. The Termination Meeting 1. Be Direct 2. Do Not Argue/Debate/Justify 3. Do Not Suggest Self-Improvement 4. Do Not Apologize 5. Be on Board with the Decision 6. Avoid Discriminatory Remarks 7. Arrange Return of Company Property 8. Non-Compete? 9. Exit Interview 41

42 C. Post Termination 1. Document 2. Inform Those With Business Need to Know 3. Exit Interview 42

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44 Always Be Consistent Review relevant employer policies Research past practice Document the basis for employer action Equal Treatment: treat similarly situated individuals similarly Fairness for the individual

45 Implement written company policies against discrimination, harassment and retaliation Communicate zero-tolerance policy to all employees Train managers and employees regularly on your company s discrimination, harassment and retaliation policies

46 Conduct Fair and Complete Internal Investigations Ensure thoroughness and fairness of investigation Create employee appeal procedure Administer Appropriate and Consistent Discipline Document The complaint/issue The investigation process The conclusions Follow up

47 Engage in on-going communication with employees about what is and is not acceptable and how to report inappropriate conduct Monitor work environment Ensure there is support (legitimate non-retaliatory reasons) for all actions Do not create potential liability or create a claim by allowing the cover-up to overshadow the alleged de minimis retaliatory act

48 Train managers to ensure that all complaints are appropriately directed and investigated and that employees who do blow the whistle are not retaliated against If the supervisors are aware of your reporting system and how to use it, they will be more likely to report misconduct early Consider training lower-level employees as well

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