TOP FIVE WAY TO MINIMIZE RISK WHEN DISCIPLING

TOP FIVE WAY TO MINIMIZE RISK WHEN DISCIPLING AND TERMINATING EMPLOYEES Elizabeth Coonan Jan. 24, 2018

S OF EMPLOYMENT LAWS Law Covers ADA Disability OSHA Workplace safety ADEA Age (40+) IRCA National origin/citizenship EPA Equal pay (♀=♂) NLRA Workers’ mutual aid & protection FLSA OT, minimum wage PDA Pregnancy FMLA Medical leave Title VII Race, color, religion, sex or national origin GINA Genetic info USERRA Military service ICRA (Iowa) Age, race, creed, color, sexual orientation, gender identity, national origin, religion, disability WDPP Wrongful discharge in violation of public policy

TOP 5 THINGS YOU NEED TO KNOW: 1) Quality communication with your employees 2) Follow your policies 3) Conduct fair and thorough investigations 4) Maintain good documentation 5) Don’t retaliate!

#1 QUALITY COMMUNICATION Employer Expectations Employee Conduct Reward, Discipline or Discharge

RULES OF THUMB • Would I feel comfortable saying this in front of my mother? • Would I feel comfortable saying this in front of the CEO? • Would I feel comfortable being quoted saying this in front of a jury? • If the answer to any of these is NO, don’t say it at work.

#2 POLICIES • How do we convey our expectations? – Verbally • Performance reviews • Counseling – Written • Handbooks • Policies

DISCIPLINE Performance vs. Conduct

PERFORMANCE AND CONDUCT Performance: The comparison of an employee’s actions against the objective or subjective standards of the employee’s position Conduct: The comparison of an employee’s behavior against the employer’s written or unwritten behavioral standards or work rules

PROGRESSIVE DISCIPLINE • Employer should take action specifically designed to improve employee’s performance or conduct • The penalty imposed should fit the violation

#3 INVESTIGATIONS Best Practices • Thorough • Independent/neutral • Organized • Defined scope • Documentation

INVESTIGATIONS When do we hire an outside investigator? • History between party and HR Manager that impairs neutrality • Complaint involves HR Manager • Complaint involves C-Suite Executive • Timing/size of investigation

#4 GOOD DOCUMENTATION Maintaining fair and accurate documentation can serve as positive evidence in a lawsuit for: • Retaliation • Wrongful termination • Discrimination

DOCUMENTATION GOALS • Goal: Communication tool and to make a record of the communication. • Maintaining fair and accurate documentation can serve as positive evidence in a lawsuit – Establishes your credibility – Shows you treat EEs consistently

DISCIPLINARY DOCUMENTATION 1. 2. 3. 4. 5. Note the policy or rule violated Note the conduct constituting the violation Note prior discussions/discipline for similar conduct Factual statements, not conclusions/judgments Don’t speak in absolutes (always, never, etc. )

DISCIPLINARY DOCUMENTATION 6. Be objective 7. Describe the conduct, not the individual (e. g. , “bad attitude”) 8. Describe impact on others 9. Be specific — give examples 10. Do it contemporaneously! a. (Don’t backdate)

DOCUMENTATION • BAD: Earlier this month, Betty wasted, and I suspect she has a drug problem and needs rehabilitation. • GOOD: On June 12, 2015 at approximately 1: 15 p. m. I observed Betty Smith walking in an unsteady manner to her office. When I walked into Betty’s office I could see she stumbled to get to her chair. When I asked Betty if she was ok, she stared at me and slowly slurred “hmm, that’s a great question. ” I could smell alcohol on her breath and could see her eyes were bloodshot. I immediately told Betty I was suspicious she was under the influence of alcohol or drugs. I proceeded to instruct her to gather belongings and pursuant to our policy she would be required to get a test to determine if she was under the influence while at work.

#5 DON’T RETALIATE

RETALIATION: DO YOU KNOW WHAT TO DO? • Employee makes an internal complaint about safety • Employee makes a complaint with an agency (IOSH, DOL, EEOC, ICRC) • Employee’s complaint turns out to be inaccurate: – There is a difference between fraudulent complaint and unfounded complaint – Before any counseling/discipline is considered for disruption and problems caused by accusations – assess whethere was good faith

HARASSMENT AND DISCRIMINATION: HOW SHOULD YOU RESPOND? • Employee says pay raise/discipline was unfair • Employee says co-worker was rude to him or her • Manager sees inappropriate behavior • Employee mentions religion as a reason for not being able to work a shift

PAY ISSUES: DO YOU KNOW WHAT TO DO? • What can I do with an employee’s last paycheck? • Uniforms • Complaints about mistakes in pay • Complaints about unfairness

FLSA: DO YOU KNOW WHAT TO DO? • What can I do about “unauthorized overtime” – not pay, discipline, etc. ? • The employees want to use “comp time” instead of vacation/PTO. Can I do that? • An employee is salaried/exempt but has been continuing to have poor performance and we keep removing job duties. Is that a problem?

FLSA: DO YOU KNOW WHAT TO DO? • Everyone in our industry has a production bonus for hourly employees. Is that a good idea? • Some hourly employees are answering emails after work hours. That’s ok because it’s de minimis (not very much time), right?

QUESTIONS?

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