Managing Employees Do s and Don ts at Critical Phases of Employment. March 21, 2017 Seattle, WA

Transcription

1 Managing Employees Do s and Don ts at Critical Phases of Employment March 21, 2017 Seattle, WA

2 Presented by: Pam Salgado Shareholder Littler Mendelson, P.C. Seattle Pamela Helman Associate Littler Mendelson, P.C. Seattle Katie Bosbyshell Associate Littler Mendelson, P.C. Seattle March 21, 2017

3 Hiring Employees A Seven Step Process: 1. Prepare Job Descriptions 2. Advertise 3. Collect and Screen Applications

4 Hiring Employees A Seven Step Process: 4. Job Interviews 5. Reference Checks 6. Select the Most Qualified 7. Job Offers

5 Writing Job Descriptions Job Descriptions Should Mirror Work and Operational Realities Gather information from Job incumbent Immediate supervisor Management

6 Writing Job Descriptions Ask about: Job title Responsibilities Authority Essential job functions Reporting relationships Minimum qualifications Training or education needed

7 Writing Job Descriptions Also ask for: Physical requirements (lifting, bending, stooping, climbing) Scheduling and work hours Working conditions Location

8 Job Advertisements EEO Concerns No protected categories Reaching appropriate pool of applicants Job posting consistent with job description Internal Referrals (preferences?) Implied Promises

9 Sample of Poorly Thought Out Ads

10 Sample of Poorly Thought Out Ads

11 Collect and Screen Applications SSA SPRING CONFERENCE & TRADE SHOW

12 Job Applications Comply with local and federal concerns: Ban-the-box? Ensure questions are lawful Ensure uniform process (accepting resume in lieu of application creates risks) Provide accommodations for application process Authorization and Release for background check Statement re: misrepresentations, omissions At-will Language Arbitration

13 Comparing Applications to Job Qualifications Participants in Process Screened From Protected Categories Examples of Factors to Consider Minimum qualifications Compliance with Instructions Work related experience & education Example of Factors that May Create Risk Applicant s desired compensation & historical compensation Qualifications given weight that are not listed on job description or job posting Interests and hobbies Focus should be upon interview of the applicant

14 Job Interviews

15 Potential Protected Categories that May Arise Pregnancy Status Marital Status (WA) Sexual Orientation (WA) Religious Beliefs Disability Political Ideology Military Service Children or Dependent Care National Origin

16 Do Not Ask About... Family origins Whether English is first language Where someone lives

17 What May Be Asked Instead? Family origins Other languag es No questions about family origins If required for the job: What languages can you speak fluently? Where someon e lives Can you be reached at this address, telephone number?

18 Do Not Ask About... Pregnancy Status Marital Status Sexual Orientation

19 What May Be Asked Instead? Spouse Children Pregnancy Do you have any commitment that would prevent working regular or overtime hours? Do you anticipate being absent in the next 6 months? Can you consistently attend work?

20 Do Not Ask About... Age Disability

21 What May Be Asked Instead? Outside Activities Minimum Age Have you been involved in any activity that has provided you with experience, training or skills that would be helpful to a position here? Do you have any commitment which would prevent you from working regular or overtime hours? Can you, if employed, show that you are over 18?

22 What May Be Asked Instead? Legal Ability To Work Citizenship Status Can you establish eligibility to work in the U.S. (I-9)? OR You may note on the application that documentation proving legal right to work in U.S. will be required upon hiring.

23 Important Lessons Use a panel (consider diversity and knowledge of job) Train panel on what can and cannot be asked Train panel on documentation Develop Standardized questions from job description Train panel on scope of follow-up questions Train interview panel for how to respond to self-disclosure Verify that decisions are based upon legitimate, nondiscriminatory business reasons

24 Promises Don t Make...

25 How Do I Preserve The Employment-At-Will Relationship? As long as you follow the rules, you ll have a job here. You ll always get a written warning before termination.

26 Five Interview Mistakes 1. Failing to ask tough, direct questions about an applicant s job qualifications 2. Talking too much 3. Over- or under-selling your organization 4. Finding common ground by gossiping 5. Failing to make the interview as long, or as short, as needed

27 Interview Notes

28 Job Interview Documentation Remember notes can be evidence of lawful or unlawful inquiries Develop a form for interviewers to use Retain interview records Ensure notes are job-related Consider recording reason for selection/non-selection

29 Offer Letters Highly recommended Describe position/salary (subject to change) Include integrated at-will employment agreement Can include arbitration agreement Subject to pre-hire drug test, background check, right to work in U.S. Subject to non-compete or restrictive covenants Remind of obligations to prior employers

30 Onboarding Confirm All Paperwork Signed & Dated! EEO policies Handbook Non-compete/restrictive covenants Arbitration Agreement I-9 Meaningful Orientation (employee & supervisor) Avoid Implied Promises

31 The Performance Review: General Principles 1. Make every review a priority. 2. Be thorough, specific, objective, factual, and consistent. 3. Don t spring surprises. 4. Meet with the employee in person. 5. Be fair, candid, and honest.

32 The Performance Review: General Principles 6. Don t leave anything important out. 7. Comments should stand alone. 8. Convey clear expectations for future performance.

33 Example INEFFECTIVE Not our image EFFECTIVE As a receptionist, Jen is in a public contact position. On four occasions [list dates], she has been verbally counseled not to work on her nails at the front desk and not to pop gum while greeting guests.

34 Example INEFFECTIVE Doesn t carry his weight EFFECTIVE Team members are required to take overload from the others after finishing assigned tasks. Ryan has not done this. Instead, he goes to the lounge for coffee, makes frequent personal telephone calls, and chats with his coworkers. When I ask him to assist other employees, he is reluctant to do so. For example, I asked him to assist Jim with the quarterly budget. Ryan appeared to be very irritated by this request. He sighed, frowned, and did not reach out to Jim until the following week. In the future, Ryan should volunteer to help others who are overloaded, without being asked, and should devote the same effort and commitment that he puts towards his own initiatives.

35 Example INEFFECTIVE Hard worker EFFECTIVE Pamela accomplishes 25% more tasks than her peers and the quality of her work is always above that of her peers. She arrives on time every day and she volunteers to work overtime when it is necessary. I regularly rely on her to help us achieve goals.

36 Performance Review Tips Acknowledge good performance Counsel to be corrective Focus on specific actions needed to achieve goals Deliver consistent and specific feedback

37 Performance Review Tips Have more than one manager attend Superior review

38 Performance Review Pitfalls Acknowledge only poor performance Counsel to be punitive Focus on general statements or sentiments Deliver inconsistent feedback Let emotions get in the way Wait until the end to partner

39 Performance Review Pitfalls View corrective action as merely a pre-cursor to termination Emphasize opinions over facts Avoid a tough conversation by giving an average or positive review Scores for all categories are the same with no explanation Stray remarks Failing to document

40 Documentation Proof that the meeting occurred Outline of topics discussed Record of employee s reactions to discussion points Employee s signature Distribute the documents to personnel file HR Tip: review and/or audit evaluations

41 What NOT to Include in Documentation Personal opinions Legal conclusions Hearsay, gossip, rumors Information about a medical condition EEO status References to prior irrelevant history

42 Disciplinary Steps: Know the Facts Conduct interviews. Consider all sides. The accused should have an opportunity to respond to every allegation. Do not decide on discipline until investigation is complete. Consider proper scope of confidentiality.

43 Disciplinary Steps: Review the Past Warnings Performance Reviews Paperwork Commendations/Awards Files on Other Employees with Similar Performance/Duties Handbook Policies (e.g. performance management policies)

44 Discipline Considerations Consider the Legal Risks Is the employee in protected class? Gender? Minority? Over 40 years old? Disabled/workplace injuries? Has the employee engaged in protected activity?

45 Discipline Considerations Consider Your Policies What do your handbook policies require? What are your options? Have you followed all policies and procedures? If not, is there an objective, justifiable reason for deviation? What are your past practices? Would termination be consistent with past practices? If not, is there an objective, justifiable reason for treating this situation differently?

46 Discipline Considerations Consider mitigating factors Consider your documentation Do you have sufficient proof of the reasons for discipline? Do prior performance evaluations support or refute your decision? Was the current issue documented in a prior evaluation? Do the documents show a legitimate business reason? Communicate expectations and consequences but avoid promises Document results

47 Avoid The Classic Mistake The best way to terminate problem employees... Don t hire them!

48 Termination Considerations Consider Fairness What does your gut (the jury) say? Would a neutral third party believe termination was fair? Does the penalty fit the crime? Is termination timely? Is the employee going to be surprised by the termination?

49 Common Termination Mistakes Segmenting performance issues; not looking at the bigger picture Appearance of retaliation Failing to get the employee s point of view Forcing an employee to resign Failing to offer constructive counseling until too late Failing to address/document the true reason for termination Offering a severance and requiring nothing in exchange

50 Tips for the Termination Meeting Don t go it alone, if possible. Document the discussion. Don t apologize or negotiate. Be prepared (last paycheck, list of property to return, termination of benefits). Conduct meeting in private. Remind employee of duty of confidentiality or other restrictive covenants.

51 Questions?