Termination Do s and Don ts

Transcription

1 Termination Do s and Don ts Shannon Latham & Hema Shinde HR Consultants The Executive s Roadmap to Best-in-Class HR Strategy 2016 TriNet Group, Inc. All rights reserved. Reproduction or distribution in whole or part without express written permission is prohibited. This proprietary communication has been prepared for educational and information purposes only. The content does not provide legal advice or legal opinions on any specific matters. Transmission of this information is not intended to create, and receipt does not constitute, an attorney-client relationship between TriNet and you. TriNet is not an insurance company, but rather is the single-employer sponsor of all of its health benefit plans. Nothing contained herein constitutes an offer to sell, buy, or procure insurance.

2 The Fine Print This presentation is for educational purposes only. TriNet provides its clients with legally compliant HR guidance and best practices. TriNet does not provide legal, tax, or accounting advice TriNet Group, Inc. All rights reserved. Reproduction or distribution in whole or part without express written permission is prohibited. 8/23/2017 2

3 Welcome! Jackie Breslin TriNet Jacqueline Breslin Director, Human Capital Services, TriNet Based in San Leandro, CA 20 years experience in Human Resources Leads a team dedicated to compliance, workplace investigations and challenging employee relations issues Experience implementing and managing HR programs to include policy development, performance management, compensation, recruitment and retention, learning and development, coaching and M&A activity 2016 TriNet Group, Inc. All rights reserved. Reproduction or distribution in whole or part without express written permission is prohibited. 8/23/2017 3

4 Subject Matter Experts Hema Shinde TriNet Hema Shinde Human Resources Consultant, TriNet Based in Dallas, TX 10 years experience in Human Resources SPHR and SHRM-SCP Certified Provides compliance and employee relations support to her Client Services team as well as TriNet clients 2016 TriNet Group, Inc. All rights reserved. Reproduction or distribution in whole or part without express written permission is prohibited. 8/23/2017 4

5 Subject Matter Experts Shannon Latham TriNet Shannon Latham Human Resources Consultant, TriNet Based in Reno, NV 10 years experience in Human Resources PHR Certified Provides compliance and employee relations support to her Client Services team as well as TriNet clients 2016 TriNet Group, Inc. All rights reserved. Reproduction or distribution in whole or part without express written permission is prohibited. 8/23/2017 5

6 Agenda Termination Overview Employee Claims Types of Terminations Business Case for Termination Best Practices in Discipline, Documentation, and Policies Severance and Separation Agreements Preparing For and Conducting a Termination Meeting Post Termination Considerations Summary 2016 TriNet Group, Inc. All rights reserved. Reproduction or distribution in whole or part without express written permission is prohibited. 8/23/2017 6

7 Termination Overview At-Will Employee or Contract Employee? Employment At-Will Doctrine Exception- Montana Contract employee Implied contract 2016 TriNet Group, Inc. All rights reserved. Reproduction or distribution in whole or part without express written permission is prohibited. 8/23/2017 7

8 Employee Claims Common Examples: Employees who allege that they were terminated due to their status as a member of a protected class of individuals Employees who claim they were terminated in retaliation for a legally protected activity like reporting harassment or discussing working conditions with employees Employees who allege they were terminated in violation of an explicit or implied employment contract Employees who allege they were forced to resign due to intolerable working conditions or environment 2016 TriNet Group, Inc. All rights reserved. Reproduction or distribution in whole or part without express written permission is prohibited. 8/23/2017 8

9 Voluntary Separation (Resignation) Do: Have a resignation notice policy in place Require resignation in writing Acknowledge the resignation in writing Review state requirements for final pay Conduct exit interview Don t: Enforce compliance with the resignation policy by means of penalties 2016 TriNet Group, Inc. All rights reserved. Reproduction or distribution in whole or part without express written permission is prohibited. 8/23/2017 9

10 Involuntary Termination Performance issues or misconduct Reductions in Force (RIF) 2016 TriNet Group, Inc. All rights reserved. Reproduction or distribution in whole or part without express written permission is prohibited. 8/23/

11 Pre-Termination Planning Do: Be transparent about your company s termination policies Be consistent in implementing the company s policies Draft a clear statement regarding the reason for the termination Don t: Terminate an employee for poor performance when there isn t substantial prior written documentation to support the term reason Terminate the employee for poor performance or misconduct when other employees have not been terminated in similar circumstances Terminate an employee in violation of local, state, or federal law 2016 TriNet Group, Inc. All rights reserved. Reproduction or distribution in whole or part without express written permission is prohibited. 8/23/

12 Discipline Do: Follow company policies already in place Assess the nature of the infraction Compare how other employees have been treated Review the history of the employee Don t: Discipline employees in public areas React with anger or threatening comments 2016 TriNet Group, Inc. All rights reserved. Reproduction or distribution in whole or part without express written permission is prohibited. 8/23/

13 Documentation Do: Begin the documentation process as soon as you notice a pattern of negative performance or behavior Encourage management to avoid charged language and to stick to observable facts Ensure proper guidelines for Accuracy Timeliness Disclosure Confidentiality 2016 TriNet Group, Inc. All rights reserved. Reproduction or distribution in whole or part without express written permission is prohibited. 8/23/

14 Documentation continued Don t: Delay documenting negative performance or behavior to avoid conflict Rush into a termination decision without proper preparation 2016 TriNet Group, Inc. All rights reserved. Reproduction or distribution in whole or part without express written permission is prohibited. 8/23/

15 Handling Reduction in Force (RIF) Do: Select employees for layoff Avoid adverse action/disparate impact Review federal and state WARN Act regulations to stay compliant Review Older Workers Benefit Protection Act (OWBPA) regulations Determine severance packages and additional services Conduct the layoff session Don t: Use small talk to stall the conversation Enter into a discussion on the reasons behind the decision 2016 TriNet Group, Inc. All rights reserved. Reproduction or distribution in whole or part without express written permission is prohibited. 8/23/

16 Policies for Terminating Employees Do: Proactively identify risk factors for potential posttermination disputes. Some protected categories include: Age, ancestry, citizenship or immigration status, color, disability, gender, genetic information, pregnancy, race, religion, veteran status, etc. Draft best practices policies regarding all aspects of an employment termination, including, supervisor training, performance evaluation, and progressive disciplinary action Train all supervisors and managers on relevant state and federal laws Draft performance improvement plans (PIP) Provide standard rules and policies Confer with management and legal counsel prior to terminating any employees 2016 TriNet Group, Inc. All rights reserved. Reproduction or distribution in whole or part without express written permission is prohibited. 8/23/

17 Policies for Terminating Employees continued Don t: Consider adverse employment action due to an employee s opposition to any practice made unlawful by Title VII, or an employee s participation in an investigation, proceeding or hearing under Title VII 2016 TriNet Group, Inc. All rights reserved. Reproduction or distribution in whole or part without express written permission is prohibited. 8/23/

18 Severance and Separation Agreements Do: Check for any obligations to provide severance Offer letter Employment contract Past practice Remain consistent in determining the amount of severance to pay Past practice Don t: Use Severance/Separation Agreements to avoid good documentation, performance management and/or discipline 2016 TriNet Group, Inc. All rights reserved. Reproduction or distribution in whole or part without express written permission is prohibited. 8/23/

19 Poll Question Have you ever been responsible for conducting an employee termination meeting? Yes No We do not conduct termination meetings 2016 TriNet Group, Inc. All rights reserved. Reproduction or distribution in whole or part without express written permission is prohibited. 8/23/

20 Preparation for termination Do: Consider the appropriate day of the week Consider the appropriate time of the day Arrange for a neutral, private setting to hold the termination meeting Prepare in advance to Process final paycheck, commissions, etc. due to the employee Block computer system access Change pass codes Get company property back Remove employees name as signatory to bank accounts or post office boxes Obtain adequate personal security if the situation may become hostile Don t: Terminate on-the spot Negotiate with the employee on the termination decision 2016 TriNet Group, Inc. All rights reserved. Reproduction or distribution in whole or part without express written permission is prohibited. 8/23/

21 Conducting a Termination Meeting Do: Consider having a third party such as a trusted manager or HR professional attend the meeting Provide the reason(s) and key facts supporting the decision Keep the meeting brief and to the point Guide the employee on next steps and treat them with dignity Don t: Delay informing the employee about the termination Humiliate the employee after termination 2016 TriNet Group, Inc. All rights reserved. Reproduction or distribution in whole or part without express written permission is prohibited. 8/23/

22 Post-Termination Interactions Prepare for a variety of post-termination communication Inquiries from other employees Employee departure announcement Telephone calls or s from terminated employees Reference Inquiries Copy of the employee file Return of company property Address unemployment claims 2016 TriNet Group, Inc. All rights reserved. Reproduction or distribution in whole or part without express written permission is prohibited. 8/23/

23 Summary Key Take-Aways Terminations are challenging and require individual analysis of the risks Policies and procedures Document, document, document Be consistent 2016 TriNet Group, Inc. All rights reserved. Reproduction or distribution in whole or part without express written permission is prohibited. 8/23/

24 About TriNet TriNet provides small and midsize businesses with a full-service HR solution so they can free themselves from the complexities of HR and focus on their goals. As their trusted HR business partner, TriNet assumes many of the responsibilities of being an employer and helps these companies contain HR costs, minimize employer-related risks and relieve the administrative burden of HR. TriNet offers bundled HR products tailored by industry and strategic HR services, resulting in a comprehensive and empowering solution. Learn more about TriNet at TriNet.com or call TriNet Group, Inc. All rights reserved. Reproduction or distribution in whole or part without express written permission is prohibited. 8/23/