Hiring, Discipline and Termination. Sandberg Phoenix & von Gontard P.C.

Transcription

1 Hiring, Discipline and Termination Sandberg Phoenix & von Gontard P.C.

2 If you remember nothing else ABCDE

3 Always Be Consistent t and Document Everything

4 Hiringi

5 Five Ground Rules

6 Rule Number 1 You can refuse to hire a job applicant for a good reason, a bad reason, no reason, or even a reason based on erroneous facts

7 Rule Number 2 You cannot refuse to hire a person for an unlawfully discriminatory reason

8 Unlawful Reasons Race or Color Gender Age National origin Ancestry (IL) Religion Disability Previous claim or suit or whistleblowing GINA Pregnancy Military Service (unfavorable discharge IL) Sexual Orientation (IL) Od Order of fprotection ti Status t (IL) Marital Status (IL) Citizenship Status (IL) Arrest Record (IL)

9 Rule Number 3 Selecting a less qualified person does not, by itself, mean that you have engaged g in unlawful discrimination

10 Rule Number 4 If the job is at-will, let the employee know that up front explain what that means

11 Rule Number 5 Document the hiring process

12 Step 1 The Job Description

13 Know what you need and want Make it accurate Make it defensible Distinguish essential functions from non- essential functions If the ability to speak English is necessary, say so but this must be a legitimate occupational qualification or business need

14 Step 2 The Advertisement

15 What Not To Do

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17 Moral of the story: Proofread y There is no such thing as a good criminal record

18 Try to reach the broadest possible audience of qualified, interested applicants

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21 Include Basic Information Job Title Brief description of duties Rate of pay Anticipated work hours Education or skill requirements

22 Avoid suggesting a preference or limitation based on a protected class- race, color, national origin, citizenship, religion, gender, marital status, pregnancy, sexual orientation, disability, age or military status Men only or Women only Girl Friday Young, dynamic, with-it staff Christian person or Muslim Recent College Grad Long-term career-minded people Good health

23 If certain physical requirements are necessary (job related), state them in the ad and in the job description and then uniformly follow them

24 Step 3 The Job Application

25 Do Not Ask Whether the person has filed workers compensation claims For a medical history For age or when the person graduated from high school Whether the person was honorably or dishonorably discharged from military service About involvement in organizations that may disclose the person s s membership in a protected group For a reference from a priest or rabbi

26 Do Ask For Education and professional information Current and prior employers (with names of supervisors and contact information) Dates of previous employment (look for gaps) Prior job titles and responsibilities Reason for leaving prior jobs Special skills or training A statement that the applicant will be legally eligible for employment in this country at the time of hire (You can require the applicant produce the original or certified copies of documents proving this) Prior convictions (not prior arrests)

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28 Step 4 The Interview

29 Prepare for the interview don t wingitit Ask everyone the same questions be consistent All questions should be job related avoid personal questions You can tell the person the essential functions of the job and ask how the person would perform that function

30 Consider Having More Than One Interview Applicants always try to give the best impression in the first interview They may let their guard down in the second or third interview Consider meeting in a social setting, such as lunch, for subsequent interviews

31 Observe Non-Verbal Actions Proper attire Manner of speaking Eye contact Hand gestures and other body language Hygiene

32 Ask Open-Ended Questions What, Why, How Describe Tell me about

33 A Good Question to Ask

34 What Not To Ask

35 Age Don t ask for a birth date or how old a person is or date of high school graduation Don t talk about specific age limits it Like or under 40 Did you really meet Lincoln?

36 Gender Are you married? Which is more important to you a family or a career? Are you planning on having children? What arrangements do you have for taking care of your children? We don t let women do heavy or dangerous work, is that OK?

37 Religion What is your religion? What church do you attend? How do you feel about (pick a religion)? Do you read the Bible? Don t talk about religion at all yours or theirs

38 Disability Don t ask about absenteeism due to health Don t ask if the person is in good health You can tell the person the essential functions of the job and ask how the person would perform that t function

39 Step 5 The Follow Through

40 You re Not Through Yet Subject all candidates to the same background investigation Check all references (negligent hiring) Check the social networking sites (Facebook, MySpace, etc.) Don t try to find out indirectly what you can t ask directly Document the hiring gprocess

41 Cybervetting The practice of viewing social networking sites such as Facebook and MySpace, blogs and other sources on the internet to obtain information about an applicant or to monitor current employees

42 Pitfalls The information may not be accurate or authentic You can t use deceit to get access to information You may learn to much

43 Polygraphs An employer cannot require or even suggest that an applicant take a lie detector test Such tests are not permitted either before or after hire Employee Polygraph Protection Act of 1988

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45 Questions About Hiring?

46 Discipline

47 How is that working for you? Dr. Phil

48 The Truth EVERYONE Hates Discipline The Employee The Supervisor The Employer The HR Supervisor

49 What Is the Purpose? To bring about a positive change in the employee s performance or adherence to company policy or To bring about an end to the employment relationship (without getting sued)

50 The Discipline Policy You need to decide what your discipline policy is: progressive - corrective You need to reduce the policy to writing The employee must understand the policy You need to document that the employee received and understands the policy You need to follow that policy

51 Formulating the Policy It should have clear disciplinary standards The standards must be applied uniformly and consistently The discipline should be matched to the severity of the offense The policy must not limit your right to enforce disciplinary measures

52 Corrective Discipline Policy A series of possible disciplinary actions that are progressively more severe - leading to either improvement or termination Verbal warning - Written Warning Suspension - Termination The level l of discipline i is selected based upon the facts and circumstances of the particular situation Other forms of discipline: demotion, transfer, reduction in pay or bonuses

53 The Purpose of Corrective Discipline The purpose is not punishment The purpose is to convince the employee that - An opportunity exists for improvement that will lead to continued employment and That a problem exists that will lead to separation if it continues Begin the process of education at the time of hire

54 Three Good Reasons First, a bad apple is a bad apple. So, it s unlikely a problem worker will shape up enough to survive the procedure. And, if he does, this is great for you it s expensive to recruit good workers. The more probable result is the worker ignores your warnings or only barely improves. Second, using employee discipline drastically reduces your chance of a lawsuit. With the written warnings, you develop sufficient documentation to justify the termination. Your warnings will document the poor results and misbehavior, tell how the worker should get better and inform him that his job is at risk. And, to be fair, you give him three chances before you terminate him. This is why jurors see this disciplinary method as giving due process to the employee. Third, your ex-worker can t argue, My employer was unjust because, y g, y p y j - He never gave me a chance to get better - He never told me I had a performance issue. - He never told me that my job was in jeopardy."

55 Remember Employees under a corrective discipline policy are still at-will Corrective discipline is not a right, it is an opportunity, offered by the employer, to correct a problem Reserve the right to skip steps Each employee and situation is unique Everything in the process must be documented Be fair - Be honest Be consistent t - Be candid Make sure you have your facts straight

56 A Surefire Way to Lose a Lawsuit 1. Don t let the employee know what the rules are 2. Don t document everything More cases are lost due to poor documentation than any other reason 3. Don t treat employees the same in similar situations 4. Don t listen to the employee 5. Don t follow your policy 6. Don t nip it in the bud

57 Verbal Warning Must be documented in writing Be clear about the problem and the policy Skip this level l for serious problems Be calm, objective and private Have a witness present Make the employee aware that further infractions will lead to more severe discipline

58 Written Warning Prepare the written warning in advance Include The date The employee s name The name of the person issuing the warning A precise description and date of the misconduct or inadequate performance and the policy violated A statement that failure to correct will result in further and more severe discipline, up to and including termination Signature lines for person issuing, the witness, and the employee (to show receipt and understanding)

59 Suspension Length? Unpaid? Document this in writing as with written warning Include a statement that failure to correct will result in further and more severe discipline, up to and including termination Successive?

60 Questions About Discipline?

61 Termination

62 How Not to Do It Even if you re tempted

63 The Ground Rules

64 Think it Through Make the decision carefully Complete a thorough investigation where indicated Don t completely rely on others for information Base your decision on objective facts, not assumptions or opinions

65 What Is the Reason? Performance related issues Poor personality or attitude Attendance issues Violation of company policy Lack of work Company reorganization

66 No Matter What Document, document, document Follow your policy Do not retaliate t Pay what you owe the employee without delay Elvis says Don t Be Cruel Only discuss with other employees on a need to know basis

67 Preparing for the Termination Interview

68 Be prepared make a plan and stick to it Ideally, the employee should not be surprised Deliver the news face to face Be respectful Be discreet Hold the meeting in a private neutral location Have the necessary paperwork ready to sign

69 Timing Mid-afternoon Middle of the week Not on a holiday Not on the person s birthday

70 The Termination Interview

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72 Control the meeting Be positive and professional Watch your tone Keep good eye contact Preserve the integrity of the employee Don t get personal The purpose is to inform not debate Do not say, Glad to see you or How are you Get right to the point don t make small talk Be brief, clear and direct (5 to 15 minutes)

73 Do not sympathize, make promises or personalize anger Wait for a response and listen to the employee Answer questions directly and honestly Make it final Explain the logistics of leaving the company

74 The Follow Through

75 Where will the employee go after the interview and who will go with the employee? Make your own notes immediately after the termination while your memory is fresh.

76 Questions About Termination?

77 Sandberg Phoenix & von Gontard P.C. St. Louis, MO 600 Washington Ave 15 th Floor St. Louis, MO Edwardsville, IL 101 W. Vandalia Street - 3rd Floor Edwardsville, IL Carbondale, IL 2015 West Main - Suite 111 Carbondale, IL O Fallon Fallon, IL 784 Wall Street, Suite 100 O'Fallon, IL Toll Free: