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Breaking Up is Hard to Do:Disciplining Your Problem

Employees

Albert B. Randall, Jr., Esq.

Baltimore

Easton

Hagerstown

Herndon

Tampa

Wilmington

Quality Representation, Personal Service

2

Handbooks

• Drafting – HR Manager or Atty.?– Cost-benefit analysis– HR Manager should draft policy– Atty. should review for legal compliance– Pre-written policies (one size does NOT fit all)

• Plain language approach – NO LEGALESE!!


3

At-will Employment

• Maryland standard

• May terminate employee for any reason– Non-contract employees– Termination may not violate public policy

(Adler)

• Employers should have at-will disclaimer– Handbook or– Stand alone policy


4

At-Will Disclaimers• Handbook may be found to be employment contract

w/o disclaimer (may form implied contract)• Cover page in handbook• Large, bold typeface, conspicuous• Acknowledgement of receipt by employee• Sample language:

– “This handbook contains the complete agreement between the company and its employees. Nothing in this handbook should be interpreted as a contract of employment. Either the company or you may terminate the employment relationship at any time and for any reason.”


5

Drafting Policies• Generally, employers are free to draft any

personnel policy relevant to its business/workforce

• No-no’s– Those prohibited by statute or case law – Those that conflict with a contract (CBA or NLRA)– Those that jeopardize health or safety of workforce– Those that conflict with public policy

• Yes-yes’s– EEO policy– FMLA policy


6

Drafting Policies (cont.)

• Overly broad– Sweeping statements in an effort to regulate

as much as possible– Language is often vague– Often contain unenforceable provisions

• Overly narrow– Extreme regulation of employee conduct– Impossible to cover everything– May have negative psychological impact


7

Drafting Policies (cont.)• Better to draft “happy medium” policies

• Ensure that policies are legally enforceable

• Equally importantly, ensure that the policies are practically and uniformly enforced

– Need to allow discretion

• Ensure that front-line managers and supervisors are trained on policies and are held

accountable for their implementation


8

Policies to Consider

• FMLA (required)• EEO (required)• At-will disclaimer• Employee privacy/emails• Leave (sick, vacation, personal, military, jury,

bereavement)• Disciplinary• Workplace violence• Substance abuse


9

Policies to Consider

• No-solicitation

• OSHA/safety policies

• Employee codes of conduct/dress

• Benefits (COBRA, etc.)

• Off-duty/moonlighting

• Arbitration of employment disputes– Jury Trial Waivers/Venue Provisions


10

Hiring Practices

• No unintended promises– Recruiting– Employment applications– Offer letters

• No discriminatory questions– Disability, gender, national origin, religion

• Up-to-date Job descriptions


11

Discipline

• Three types:– Zero tolerance– Progressive – Hidden/reactionary


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Progressive Discipline

• Publish the policy– Informs employee of expectations

• Draft policy so that it does not contractually bind employer– Be wary of “shalls”, “wills”, “musts”– Permit discretion– Remind of “at-will” employment in discipline policy

• Be intentionally vague in terms of discipline for various offenses


13

Documentation

• Do supervisors maintain incident logs?

• Have verbal warnings been documented/retained in personnel files?

• Are copies of written warnings retained?


14

Documentation (cont.)

• Verbal warning– Employee/supervisor’s name & date of

warning– Reason for warning– Opportunity for employee to respond– Corrective measures– Statement that failure to correct will result in

more serious discipline, including up to termination


15

Documentation (cont.)

• Written warning– Signed acknowledgement/date from employee– Signed/dated by supervisor– Include acknowledgment from employee that

the failure to undertake corrective measures will result in more severe discipline

– If employee refuses to sign, supervisor should note


16

Performance Appraisals

• Do they match the employee’s performance?

• If not, may be difficult to discipline/terminate/prevail in litigation


17

Do You Investigate?

• Does law require investigation?

• Is there a contractual obligation to investigate?

• Concerns for future liability?


18

Choosing the Investigator

• Match the investigator to the situation• Consider training and qualifications• Consider nature of allegations• Consider second investigator for

corroboration


19

Principles Underlying Investigations

• Fairness

• Notice to accused

• Opportunity to respond

• Fundamental fairness– Does the result pass the “smell test?”


20

Gathering Information

• Consider all records, voicemail, e-mail, telephone records, computer records, photographs and security videotapes

• Preserve originals• Interview witnesses• Maintain impartiality• Preserve confidentiality• Focused questioning


21

Making the Decision

• Consider suspending pending investigation before immediately terminating

• Have you interviewed all witnesses, including accused and those witnesses identified by accused?

• Have you followed the policy? • Have you acted fairly/non-discriminatorily?• Have you documented everything?• Do you have a witness at the termination

meeting?


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Documenting the Decision

• Equally important as documenting the investigation

• Helps establish rationale behind decision


23

Guarding Against Retaliation Claims

• Retaliation claims fastest growing EEOC claim

• Need to advise Complainants and other participants of no tolerance for retaliation

• Follow up to ensure that no retaliation has taken place


24

Questions?

Albert (“Bert”) B. Randall, Jr., Esq.Franklin & Prokopik

The B&O Building2 N. Charles Street, Suite 600

Baltimore, MD 21201(410) 230-3622

[email protected]

Baltimore MD Easton MD Hagerstown MD Herndon VA Tampa FL Wilmington DE


Date post:	07-Jan-2016
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