BEST PRACTICES Andrew M Schpak Barran Liebman LLP March 16 2018 Why discipline is important Importance of documentation Progressive Discipline Employee complaints about discipline Public employers ID: 689505
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DISCIPLINE & TERMINATION BEST PRACTICES
Andrew M.
Schpak
Barran Liebman LLP
March 16, 2018Slide2
Why discipline is importantImportance of documentationProgressive DisciplineEmployee complaints about disciplinePublic employers
Union employees
Employee rights on termination
AGENDASlide3
WHY DISCIPLINE IS IMPORTANTSlide4
Helps employees understand rules, requirements, and expectationsHelps you shape employee performanceAids you in ending relationships with minimal conflictComplies with legal requirements that protect employees
THE ROLE OF DISCIPLINESlide5
Before you start talking about discipline:Make sure the employee has an understanding of expectationsIf there is a problem, make sure the employee understands itIf there is a deadline, make sure the employer communicates it If the employer has something to say about performance, say it
Don’t provide excuses for the employee
Instead, listen to what the employee has to sayTimely identify and communicate poor performance concerns
COMMUNICATE & ENFORCE
EXPECTATIONSSlide6
DEFINE THE STANDARD & AVOID SURPRISESEstablish the standard through:
Job descriptions
Department policiesOperating instructionsPerformance feedbackAvoid surprisesDo not let employees continue to disappoint you without interveningDiscipline should never be a surprise to the employee
Ongoing feedback is critical to performance managementSlide7
AT-WILL EMPLOYMENT?It is the default ruleBut it does not protect you from:Contract claims
Statutory claims
Tort claimsJuries never believe employers terminate employees for no reason at allFairness mattersSlide8
DOCUMENTATION IS EVERYTHINGSlide9
WHAT TO DOCUMENTPerformance concerns:The employer has not yet raised to the employee
The employer has raised to the employee
Serious behavioral problemsWorkplace “sins” that can hurt others: drug or alcohol violations, violence, harassment, discrimination, retaliationSlide10
WHEN TO DOCUMENTEvery time you meet with an employee regarding a:
Performance concern
Personnel actionPolicy and procedure discussionGrievanceInvestigationComplaintOther significant eventSlide11
KEYS TO DOCUMENTATIONAssume it will be read by many people Be professional
Be legible
Be complete and honestDo not make statements that suggest the motive is discriminatory or retaliatoryDo not gripe about what the law requires you to doSlide12
PROGRESSIVE DISCIPLINESlide13
WHAT IS PROGRESSIVE DISCIPLINE?
Progressive Discipline is a process in which the penalty becomes greater for each succeeding infraction
A typical process could be:Verbal warningWritten warningSuspension and/or Last Chance AgreementTerminationSlide14
EARLY DISCIPLINE/VERBAL WARNING
Private, informal conversation
Plan exactly what you will say in advanceIdentify areas of concernSpecify proposed solution(s)Document in personnel fileSlide15
HOW TO INTERVENEHave a reason to talkGeneral concerns?Touching base?
Specific performance problems?
Pick a good time and placeMake sure the employee is not on a deadlineIf you anticipate an emotional reaction, talk at the end of the dayPick a non-public location Have examples of performance problemsEvidence of mistakes help focus the discussion
Ask: “What can we do to help you improve?”Slide16
WAYS TO DOCUMENT VERBAL WARNING
Follow-up email to employee
Memorandum to personnel fileNo signature requiredMay present to employee for signatureSummarize the conversationEvents and concernsExpectations for the job and to correct performance
“What do you think you need to help you improve?”
Include the date on which the conversation took place
Make sure a copy goes into the personnel file Slide17
YOUR PAPER TRAILPrepare all documentation on the assumption someone else will read itEmployee (and employee’s attorney(s)?)
EEOC or BOLI
Judge and jury Emails among management and HR are discoverable in litigationPrepare documentation as close to the time of the event as possibleSlide18
WRITTEN WARNINGSState the problem
List prior discussions and discipline
Describe persistent behaviors or mistakes Indicate that the problem must be correctedInclude clear time framesDisclose potential consequences
“Discipline up to and including termination”Slide19
WRITTEN WARNING STRATEGIESThe employer may document by reference a previously undocumented eventPrepare a complete summary of pertinent events (prior violations, counseling sessions)
Be as thorough as possible
Use this “history” as a preamble for the current disciplinary eventSlide20
DELIVERING WRITTEN WARNINGS
Face-to-face meeting with the employee
Present memorandumObtain the employee’s signaturePlace the original in the personnel fileProvide the employee with a copySlide21
IF THE EMPLOYEE
REFUSES
TO SIGN
Make a notation
Get a witness and make a notation
Provide rebuttal space
Get an email receiptSlide22
PROGRESSIVE DISCIPLINEThe employer may also consider monetary penalties:DemotionsSuspensions
Withholding raises
But the employer should avoid “fining” employees and be aware of wage and hour lawsSlide23
FINAL WARNINGS &LAST CHANCE AGREEMENTS
The supervisor and employee sign the
documentExplain offenses committed by the employeeState expectations for the agreement periodProvide a notice of termination as
consequence
Establish time
frames
List resources for employee
improvement
Enforce
it
Avoid a “final, final” and/or repeating this stepSlide24
PROGRESSIVE DISCIPLINE PITFALLS
Placing an employee on probation who should be fired
Retaining an employee who engaged in illegal or unethical conductRemoving disciplinary notices from personnel filesCreating a contractSlide25
SPECIAL TECHNIQUESDecision-making leaveTalk to the employee about concerns
Explain that the employee needs to decide whether he or she wants the job
To keep job, changes need to be madeSend employee home, for 1-2-3 dayswith pay to decide whether to commit
Voluntary separation pursuant to a severance agreementSlide26
YOUR WORST ENEMY: EMAILCasual emails are just as important as the language of the discipline itself
Emails written by HR or supervisors will likely be used by the disgruntled employee in court
Don’t be too casualDon’t make inappropriate jokesDon’t reference the employee’s protected class or activity when considering disciplineSlide27
WHEN AN EMPLOYEE COMPLAINS
ABOUT DISCIPLINE DURING A MEETINGSlide28
HOW THIS COMES UPMeeting scheduled to discuss performanceEmployee voices concern about:
Discriminatory treatment
Retaliation as a motive for disciplineIllegal or unethical conduct by a co-worker, boss, or the organization Slide29
FROM ONE TRACK TO TWOTake the complaint seriouslyZero tolerance for retaliation
Perform a meaningful investigation
Separate the complaint from the discipline to the extent possibleIf the accused is the person who recommended discipline, tread carefully – “Cat’s Paw Liability”Slide30
CHANGE COURSE BASED ON INVESTIGATION FINDINGS?Was the complaint substantiated?
Was the accused involved in the discipline process?
Consider whether planned discipline is still appropriate in light of the investigation findingsSlide31
TERMINATION BEST PRACTICESSlide32
START HERE: THE PERSONNEL FILE
Reason for termination
Record of prior disciplineTrainingEmployee complaints that may be importantDuration of employment
Protected activity/class
Other factors that may matterSlide33
GET THE FACTS STRAIGHTDo not pre-judge
Do not pressure or threaten
Do not make promises you cannot keepDocumentation is everythingCheck your workConsistent enforcement
Provide due process, opportunity to be heard
Can you pass the “smell” test?Slide34
FOLLOW THE SMELL TESTThe employer should be able to articulate and explain the reasons for discipline or termination
Be careful about generalizations that do not say enough
“Not a fit”“Not working out”“Need to reorganize”“Personality conflict”“Bad attitude”
If the excuse smells fishy, think twiceSlide35
TIMING THE DECISION Proximity of termination to the protected event may be sufficient evidence to let the claim go to the jury
When the decision is made but termination may be delayed, document the timing of the decision
Don’t ask for trouble (unless you really have to)Terminations during family leaveTerminations while on injured worker statusSlide36
THINK ABOUT TIMINGLate in the day vs. midday
Wednesday vs. Friday
Practical considerationsDoes the employee have transportation?Avoid holidays and vacations if possibleAvoid “heartless” timing if possible
Termination upon hearing about the death of a family memberSlide37
THE TERMINATION MEETINGWho should attend? Boss? HR? Witness
?
Be short, to the point, and professionalStatements made at the time of termination may provide direct evidence of motiveAvoid ambiguous reasons that might suggest an improper motive
Absences where they may be protected
Protected complaints as compared to the improper manner of complainingSlide38
PROVIDE COMPLETE REASONSFOR TERMINATION
If termination is for several reasons, be complete
If each reason would be sufficient independently, say soBe prepared with clear denial if employee suggests motive may be improperProvide firm statement of reasons for terminationSlide39
WHAT TO TELL OTHER EMPLOYEES
Consider organizational culture
Defamation claimsAsk terminated employee what he/she would like to have saidConsider whether to explain that no reasons will be provided because of the individual’s privacySlide40
NON-COMPETE & TRADE SECRET REMINDERS
Provide a copy of policies or agreements
Remind the employee of post-employment restrictionsSlide41
GETTING COMPANY PROPERTY BACK
Prepare a checklist
Offer to stop by and pick up company equipmentDo not withhold earned wages pending return of propertyMay withhold discretionary severance or other discretionary benefits
Civil lawsuit
Police Slide42
SEVERANCE? GET A STRONG RELEASEDefine the “
Releasor
” broadlyEmployee’s spouse, agents, anyone claiming through him/herDefine the “Released Parties” broadlyOfficers and directors, owners, agents, insurers, attorneys, employees, subsidiaries, affiliates
Define the “Released Claims” broadly
Special considerations related to waiver of age claimsSlide43
PUBLIC EMPLOYERSSlide44
PUBLIC EMPLOYEE DISCIPLINEEmployee has more protections
“Cause” (per ORS 240.555
)MisconductInefficiencyIncompetenceInsubordination
Indolence
Malfeasance
Other unfitness to render effective serviceSlide45
STATE PERSONNEL RELATIONS LAW
“
Cause” (per ORS 240.555)MisconductInefficiencyIncompetenceInsubordinationIndolence
Malfeasance
Other unfitness to render effective
service
First Amendment free speech and other constitutional protectionsSlide46
NECESSARY PROCEDURESDeprivation of “property interest” (in continued employment)
must be accompanied by at least minimal procedural protections
:NoticeOpportunity to be heardSlide47
WHAT KIND OF NOTICE?Notice of the action contemplated
Nature of discipline must be specified
“Further disciplinary measures” is inadequateNotice of the charges with sufficient particularity to enable him/her to identify and respondDates
Acts
Persons
involvedSlide48
WHAT KIND OF OPPORTUNITY TO BE HEARD?Reasonable time to respond
Response can be informal
Can be oral or writtenMust be to a person authorized to make or recommend a final decisionSlide49
UNION EMPLOYEESSlide50
THE CBA & ADDITIONAL RIGHTSCollective Bargaining Agreement (CBA)It may limit employer’s disciplinary options
Employee has right to a representative at discipline or termination meetings
CBA may restrict what can be placed in the personnel fileGrievance procedureSlide51
EMPLOYEE RIGHTS ON TERMINATIONSlide52
FINAL PAYCHECKSMay not be mailed unless employee requests
Must include all amounts owed
All time workedTuition reimbursementEarned but unused vacation (per policy)Bonus amountsFloating holidays (per policy)Commissions
Sick leave if cashed out (per policy)
Reimbursement
Strict timelinesSlide53
REASON FOR SEPARATION
FINAL PAYCHECK DEADLINE
Termination
End of the next business day
Quit with 48 hours advance notice
Final work day
Quit without 48 hours notice
Five working
days
OR
the next regular payday
(whichever comes first)
Oregon:
Washington:
Due on the next regularly scheduled payday regardless of whether the worker quit or was fired
FINAL PAYCHECKSSlide54
VACATION, PTO & SICK LEAVE?Whether these amounts are owed depends on both: Company policy
Past practice
Consider policies that provide for payout if employee provides two or more weeks’ noticeAbsent clear policy language, it is safer to paySlide55
SEVERANCE PAYEmployers are not obligated to pay severance
Employers can have ERISA qualified severance plans
Severance pay can be consideration for a release of claimsCOBRA options and obligationsSlide56
Andrew SchpakBarran Liebman LLP
aschpak@barran.com
(503) 276-2156
~ THANK YOU ~