Terminations and Disciplinary Action How to Do it

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Terminations and Disciplinary Action: How to Do it and Survive! Jo Ellen Whitney Jo.

Terminations and Disciplinary Action: How to Do it and Survive! Jo Ellen Whitney Jo. Ellen. Whitney@davisbrownlaw. com Davis Brown Law Firm © 2015 DAVIS BROWN KOEHN SHORS & ROBERTS P. C.

DISCLAIMER Due to limitations and the nature of this program please understand that printed

DISCLAIMER Due to limitations and the nature of this program please understand that printed material and oral presentations or other data presented are not intended to be a definitive analysis of the subjects discussed. Users are cautioned that situations involving healthcare and employment law questions are unique to each individual circumstance, and the facts of each situation will dictate a different set of considerations and varying results. Material contained on this site or listed as a reference is a general review of the issues, and must not be considered as a substitute for advice from your attorney on your own independent situations. © 2015 DAVIS BROWN KOEHN SHORS & ROBERTS P. C.

Jo Ellen Whitney, JD I am a Senior Partner at the Davis Brown Law

Jo Ellen Whitney, JD I am a Senior Partner at the Davis Brown Law Firm, I work in: • Employment & Labor Relations • Health Law • Privacy & Security (HIPAA) • Litigation • My contact information is: Davis Brown Law Firm 215 10 th Street, Ste. 1300 Des Moines, IA 50309 515 -246 -7993 Jo. Ellen. Whitney@davisbrownlaw. com © 2015 DAVIS BROWN KOEHN SHORS & ROBERTS P. C.

RULES 1, 2, and 3 • SET AN EXAMPLE • BE CLEAR • BE

RULES 1, 2, and 3 • SET AN EXAMPLE • BE CLEAR • BE CONSISTENT © 2015 DAVIS BROWN KOEHN SHORS & ROBERTS P. C.

RECIPE FOR DISASTER • Can’t get away from the personal – Nepotism – Favoritism

RECIPE FOR DISASTER • Can’t get away from the personal – Nepotism – Favoritism – Local gossip © 2015 DAVIS BROWN KOEHN SHORS & ROBERTS P. C.

RECIPE FOR DISASTER Lacks professionalism Rehire problem children Hire from desperation Wait too long

RECIPE FOR DISASTER Lacks professionalism Rehire problem children Hire from desperation Wait too long to address issues • Don’t document • Don’t involve HR • • © 2015 DAVIS BROWN KOEHN SHORS & ROBERTS P. C.

Employer Expectations And Rules Must Be Both Clear And Communicated To The Employee. •

Employer Expectations And Rules Must Be Both Clear And Communicated To The Employee. • The application should contain a disclaimer that employees are employees at will. • Employee should be informed of the rules of conduct and performance standards. • Rules and performance standards should also be set forth in employee handbooks. • Employers should include language to the effect that express policies may be changed at the discretion of company management and that the policies are an example only and not intended to be all inclusive. © 2015 DAVIS BROWN KOEHN SHORS & ROBERTS P. C.

Consistent Performance Standards Should Exist • Standardized levels of performance can be communicated in

Consistent Performance Standards Should Exist • Standardized levels of performance can be communicated in the same way as employee rules of conduct. Managers who are engaged in the review process should provide specific information in reviews. Criticisms of employee conduct or performance should be concrete. Employees should be given suggestions for change or improvement. • Avoid making derogatory comments about characteristics or circumstances which do not relate to the employee’s work performance. Personal comments can be the basis of later employee claims of defamation or negligent evaluation. © 2015 DAVIS BROWN KOEHN SHORS & ROBERTS P. C.

Rules And Performance Standards Should Be Consistently Applied • Wrongful termination and discrimination cases

Rules And Performance Standards Should Be Consistently Applied • Wrongful termination and discrimination cases can be based on the fact that express policies which were made known to the employee were not followed in that individual’s termination. © 2015 DAVIS BROWN KOEHN SHORS & ROBERTS P. C.

The Employee Should Have Received Prior Warning Of His/Her Substandard Or Inappropriate Actions. •

The Employee Should Have Received Prior Warning Of His/Her Substandard Or Inappropriate Actions. • Prior warning is not always absolutely necessary and there are some circumstances, such as endangering other employees or participating in violence, where immediate termination is warranted. The element of prior warning is, however, part of the general fairness test that agencies, courts and juries frequently apply to any termination decision. © 2015 DAVIS BROWN KOEHN SHORS & ROBERTS P. C.

Benefit • Good public relations/Internal and External • Additional time in which to finish

Benefit • Good public relations/Internal and External • Additional time in which to finish evaluating an employee • Plan for a termination • Circumvent later allegations that the reason given for termination were mere pretext © 2015 DAVIS BROWN KOEHN SHORS & ROBERTS P. C.

The Employer Should Have An Articulable Reason For Terminating The Employee. • If the

The Employer Should Have An Articulable Reason For Terminating The Employee. • If the employer has a clear-cut and easily articulable reason for terminating the employee, termination is easier to defend in terms of unemployment compensation claims and later potential litigation. © 2015 DAVIS BROWN KOEHN SHORS & ROBERTS P. C.

Create Good Documentation • The documentation is legible. • It is reviewed by another

Create Good Documentation • The documentation is legible. • It is reviewed by another person in the company to assure the file clearly indicates the action you took. • It is written on the appropriate form or a full size piece of paper which was not intended for some other purpose. In other words, don’t turn a pay raise form into a reprimand. • It indicates who is creating the documentation and why. • It is dated. © 2015 DAVIS BROWN KOEHN SHORS & ROBERTS P. C.

Create Good Documentation (cont. ) • It relates to specific events or incidents and

Create Good Documentation (cont. ) • It relates to specific events or incidents and provides concrete examples of existing problems. • It relates to an issue which is reasonably part of the employee’s job performance. • If it is a warning, termination notice, or performance review, it is provided to the employee and the employee is given the opportunity to review, make comments and sign the document. • The same type of documentation is kept in all similar circumstances. © 2015 DAVIS BROWN KOEHN SHORS & ROBERTS P. C.

Create Good Documentation (cont. ) • It is kept in the employee’s personnel or

Create Good Documentation (cont. ) • It is kept in the employee’s personnel or other appropriate file. It should be noted that medical records need to be kept in separate files and held confidential, as do investigative files/notes. • If it were to be read by a third party, the content of the documentation would appear to be fair and would not in any manner be embarrassing to the employer. • That the documentation refers primarily to the individual employee. Complaints, reprimands or evaluations of numerous employees should not be aggregated into a single document. Confidential data should not be included in a personnel file. © 2015 DAVIS BROWN KOEHN SHORS & ROBERTS P. C.

THE 7 C’S OF GOOD DOCUMENTATION • • Concurrent Clear Concise Consistent Concrete Commonsense

THE 7 C’S OF GOOD DOCUMENTATION • • Concurrent Clear Concise Consistent Concrete Commonsense Confidentiality © 2015 DAVIS BROWN KOEHN SHORS & ROBERTS P. C.

So You Have a Complaint! Now what? © 2015 DAVIS BROWN KOEHN SHORS &

So You Have a Complaint! Now what? © 2015 DAVIS BROWN KOEHN SHORS & ROBERTS P. C.

Guidelines to Investigating Complaints • Involve HR • Begin your investigation in a timely

Guidelines to Investigating Complaints • Involve HR • Begin your investigation in a timely manner. • You need to make a determination regarding who would conduct the investigation. To preserve fairness within the investigation, fact witnesses should never be investigators. • Determine the order of interviews. • Conduct the investigation in private and take reasonable efforts to maintain confidentiality. • Do not force the person complaining to confront the person they are complaining about. © 2015 DAVIS BROWN KOEHN SHORS & ROBERTS P. C.

Interviewing Witnesses • Put the complainant/witnesses at ease. • Ask everyone involved to respect

Interviewing Witnesses • Put the complainant/witnesses at ease. • Ask everyone involved to respect confidentiality to avoid issues with the investigation. If they want to blab you can’t stop them. • Let everyone involved know that retaliation against witnesses or others will not be tolerated and will result in disciplinary action. • Interview the employees in a confidential and comfortable atmosphere. © 2015 DAVIS BROWN KOEHN SHORS & ROBERTS P. C.

ASK • Always ask the complainant/witness if he/she has any documents regarding the incident(s),

ASK • Always ask the complainant/witness if he/she has any documents regarding the incident(s), any other information he/she would like to provide you, and the names of any additional witnesses and what he/she thinks should be the outcome of the complaint. • Document the conversations with all witnesses and don’t forget to include date, time and persons in attendance in the interview. • Schedule a follow up meeting with the employee who made the complaint in a timely fashion even if you have not yet completed the investigation. It is important for the employee to know that you are taking the matter seriously and moving forward. © 2015 DAVIS BROWN KOEHN SHORS & ROBERTS P. C.

ASK • Meet with the accused employee to advise him/her of the complaint and

ASK • Meet with the accused employee to advise him/her of the complaint and to obtain responses, any documents and witness names. • Schedule a follow-up meeting with the accused employee and keep that employee informed of the status of the investigation. • Review the personnel file of the accused employee. • Communicate. © 2015 DAVIS BROWN KOEHN SHORS & ROBERTS P. C.

Discipline • Determine appropriate discipline or other action. • Assess workplace safety issues. •

Discipline • Determine appropriate discipline or other action. • Assess workplace safety issues. • Inform the accused. • Inform, in a summary way, the Complainant. • Monitor the situation to insure that there is no repeat of the problematic behavior or retaliation. © 2015 DAVIS BROWN KOEHN SHORS & ROBERTS P. C.

Internal/External PR • Have a plan to communicate to coemployees. In an age of

Internal/External PR • Have a plan to communicate to coemployees. In an age of Twitter “we don’t comment on personnel matters” no longer works. – There were policy issues we addressed…. . – There were performance issues…. • Have an external plan if there is likely to be outside inquiry © 2015 DAVIS BROWN KOEHN SHORS & ROBERTS P. C.

Post Termination Security • Credit Cards, Pay pal, Accounts Online • System Passwords, remote

Post Termination Security • Credit Cards, Pay pal, Accounts Online • System Passwords, remote access, 3 rd Party Systems • PDA-laptops, cell phones, tablets • Keys, cars, marketing materials, inventions. . . Stuff. © 2015 DAVIS BROWN KOEHN SHORS & ROBERTS P. C.

Tough Circumstances • They are on FMLA or just came off FMLA • They

Tough Circumstances • They are on FMLA or just came off FMLA • They are on work comp or still have restrictions • There is a harassment complaint • There is an ADA issue • They are pregnant © 2015 DAVIS BROWN KOEHN SHORS & ROBERTS P. C.

Think Carefully • Do we have documentation over time? • Does the problem relate

Think Carefully • Do we have documentation over time? • Does the problem relate to the health issue? • Have we met our obligations (FMLA notice, interactive discussion)? • Is this a group issue or an individual one (dept. closing vs. a person termed)? • How will you articulate this to the ICRC, DOL, Court? • Is it concrete? © 2015 DAVIS BROWN KOEHN SHORS & ROBERTS P. C.

Attendance Can Be Tricky • • • Why were they gone How frequent Coupled

Attendance Can Be Tricky • • • Why were they gone How frequent Coupled with tardiness Do they have FMLA Do they qualify for FMLA Is this an ADA issue Are we consistent in category Did we document Did we warn – “and you will be terminated” © 2015 DAVIS BROWN KOEHN SHORS & ROBERTS P. C.

I Hate My Job! • Facebook complaints and chatter • Theft from company-threats of

I Hate My Job! • Facebook complaints and chatter • Theft from company-threats of violence • I hate my job • Printing legally protected information • My supervisor is a jerk © 2015 DAVIS BROWN KOEHN SHORS & ROBERTS P. C.

I Wasn’t At Work! • Off work conduct can impact your ability to do

I Wasn’t At Work! • Off work conduct can impact your ability to do your job. Be judicious and practical in this area. © 2015 DAVIS BROWN KOEHN SHORS & ROBERTS P. C.

What About Substance Abuse • Performance issues • Pros/Cons drug testing • ADA issues

What About Substance Abuse • Performance issues • Pros/Cons drug testing • ADA issues © 2015 DAVIS BROWN KOEHN SHORS & ROBERTS P. C.

Are They Eligible for Rehire • Substance Abuse Terminations (ADA) • Performance Terminations ©

Are They Eligible for Rehire • Substance Abuse Terminations (ADA) • Performance Terminations © 2015 DAVIS BROWN KOEHN SHORS & ROBERTS P. C.

Do We Have to Self Report • • IBN/IBM/Pharmacy Federal Contractor Fraud/Abuse/Self Dealing PROTECT

Do We Have to Self Report • • IBN/IBM/Pharmacy Federal Contractor Fraud/Abuse/Self Dealing PROTECT ACT © 2015 DAVIS BROWN KOEHN SHORS & ROBERTS P. C.

Do Not Commit The Three Biggest Mistakes • Failure to gather all the facts

Do Not Commit The Three Biggest Mistakes • Failure to gather all the facts – rush to judgment • Letting personality get in the way - blame the victim • Avoidance – not interview accused, slow, “I don’t want to hurt anyone’s feelings. © 2015 DAVIS BROWN KOEHN SHORS & ROBERTS P. C.

Thank you Jo Ellen Whitney Jo. Ellen. Whitney@davisbrownlaw. com Davis Brown Law Firm ©

Thank you Jo Ellen Whitney Jo. Ellen. Whitney@davisbrownlaw. com Davis Brown Law Firm © 2015 DAVIS BROWN KOEHN SHORS & ROBERTS P. C.