The Ten Deadly Questions

transcript

John P. Boggs, Esq.Fine, Boggs & Perkins LLP

Speakers

Moderator Presenter

Becky RossMarketing Manager

303-228-8753

bross@kpaonline.com

John P. Boggs, Esq.Fine, Boggs & Perkins LLP

650-712-8908jboggs@employerlawyers.com

Questions

• If you have questions during the presentation, please submit them using the “Questions” feature

• Questions will be answered at the end of the webinar

Agenda

Performance Improvement Plans– Performance Deficiencies– Rule Violations

The Ten Deadly Questions

Termination Checklist

Conducting the Termination

1. Performance Deficiency

* Follows the Rules but just can’t live up to expectations

2. Rule Violations

* May perform well but can’t seem to follow the rules

COMBINATION OF BOTH

Two Reasons for Discipline or Termination

Rule Violations

F.I.N.E.Find Published Rule (Employee Handbook)Identify Specifics of How Rule was BrokenNotice as to What is ExpectedExplain Outcome if Continues or Decision Now

Discipline/Termination

Performance Deficiencies

N.E.A.T.Notice of Expected StandardExplain

1. Performance Deficiency2. What Must Be Done

Assistance to ImproveTime to improve

Discipline/Termination

FALSE PRETEXTThe reason given for discipline was untrue; and

-The true reason for discipline was discrimination.

-Discrimination is considered to have been a “reason” if it was a motivating factor.

Avoidance The Appearance of Discrimination

1. Do you feel comfortable after your investigation that you will be able to prove, with evidence, that the employee violated the rule, or the standard of performance was not met, and that you have treated other similar situations with the same level of discipline in similar circumstances?

Legal Liability Checklist

2. Are there any prior commitments (written agreements or promises) in employee's personnel file regarding a specific term of employment, continued employment or a requirement of just cause for termination of employment?

3. Are there any complaints or claims (formal or informal) that the employee has made against the company, any co-worker, customer or vendor? (e.g., harassment, discrimination, retaliation, unpaid wages, workers compensation claims, safety issues, labor regulation violations, dishonesty, customer fraud or other claims that the company violated the law in any way, etc.)

4. If the employee falls into a "protected category" (e.g., minority, race, religion, color, sex, sexual orientation, national origin, ancestry, citizenship status, uniform service member status, marital status, pregnancy, age/over 40, medical condition—cancer related or HIV/AIDS related, disability, or transgender status), does the employee's "protected category" represent a relatively small portion of your workforce or the employee's work group.

5. Has the employee taken any leaves of absence within the last year? (Medical leave, Family Care leave, Pregnancy leave, Drug/Alcohol Rehabilitation leave, Workers Compensation leave, etc.)

6. Have you disciplined others for this same general rule violation or performance deficiency?

7. Has the level of discipline imposed been substantially the same for the same violation or performance deficiency for other employees?

8. Have you failed to discipline anyone for the same general rule violation or performance deficiency, even though some other employees may have been disciplined for it?

9. Have you given different levels of discipline to different employees for the same general rule violation or performance deficiency?

10. Do you plan to terminate the employee?

Rule Violations• Investigative Statements or Questionnaires

• Written Record of Investigation• Signed Under Penalty of Perjury

• Interview the Accused • Have a Witness• Complete & Sign the Statement • Suspend the accused pending completion

of the investigation

Build Your Case

Find out what has been done in similar situations in the past.

Also consider whether any other employees currently are in a similar situation.

Compare the protected categories of current and former employees in similar situations.

Avoid Discriminatory Decisions

Determine if you can distinguish leniency in similar situations.

Document why current discipline scenario is different than other non-discipline scenarios.

“Start Fresh” and hold back on more severe discipline

Avoid Discriminatory Decisions

• Do not terminate in anger or with enthusiasm

• Require a second approval within the organization

• Suspend pending investigation

• Contact counsel prior to termination

• Identify the Land Mines

Termination ConsiderationsTermination Considerations

QUESTIONS?

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The Ten Deadly Questions

Business