#gagtc15 employment law basics for the small office john l. weltin, constangy, brooks, smith &...

#GaGTC15

Employment Law Basicsfor the Small Office

John L. Weltin, Constangy, Brooks, Smith & Prophete LLP

jweltin@constangy.com(478) 621-2402

Most Common Employment Issues Which Arise and How to Thwart Them

Most Common Reasons Employers Are Sued:

Not acting as the employer “should have” Failing to present enough evidence to support its

decision Not being “fair” – blindsiding employees

Failure to communicate expectations or give employee notice when they are not meeting them.

Absence of opportunity to defend. Lack of consistency (e.g., application of policies) Insult to dignity

How Do You Resolve Those Issues?Treat Employees FairlyExplain the Reasons Communicate Expectations Up Front and

Give Employees Chance to “Fix” ProblemsRemain Consistent in Application of

PoliciesRespect the Dignity of the Employee(yes, this is easier said than done. . .)

So What Can We Do To Prevent Problems?

Do’s and Don’ts of Management

Dos and Don’ts of Management Clarify to employees what behaviors are

expected and what behaviors are not expected. Explain to employees the consequences of

departing from expectations, rules, standards, policies, and procedures.

Provide prompt, specific feedback to employees when they depart from expectations, rules, standards, policies, and procedures.

Provide specific and concrete advice to employees about how to improve.

Monitor employee behavior, providing sufficient time for employee to improve.

Take increasingly severe measures when employees do not improve, or

Commend employees when their behavior does improve while emphasizing that they will continue to be held accountable for behaving in ways consistent with the organization’s requirements.

Do’s and Don’ts of Management

Documentation Procedures

Documentation Procedures- Do’s and Don’ts

• Do’s:– Documents are “blueprint” of the process– Give written warnings– Give REAL performance evaluations – Document absences and leave– Document Key Events (Timely, Accurately)– Keep Confidential Information Confidential– Date and sign all reports and investigation files

Coaching and Corrective Action

Coaching and Corrective Action Educate, Motivate & Rehabilitate!

•Verbal Counseling

• Written Warning

• Final Written Warning /

• Suspension

• Termination

•Coaching

7 Steps to Successful Coaching1. Start positive.2. Be specific.3. Be prepared to identify a plan to correct the situation.4. Insure the responsibility to correct individual behavior

or performance issues is placed clearly on the employee.

5. Stay A) in control and B) under control.6. If possible, close with a positive statement of support.7. Focus on getting “buy-in” on the part of the employee.

Importance of Documentation

Why Does It Matter Anyway?

Documents support events.

Documents refresh memories.

Documents should leave no room for misunderstanding.

What Should Be Contained In A Disciplinary Memo

• Date• Specific Violation• Mention Any Prior Related Discipline• If No Improvement- What Will Happen?• Employee Response• Employee Commitment• Signature of Employee• Supervisor’s Follow Up

What Concerns Your Lawyer

Favoritism/Special Treatment Inaccurate Performance Reviews Progressive Discipline Not Followed Not Keeping Disciplinary Actions Private Unsigned Discipline Secret Files

Example of Importance of Documentation

Example of Importance of Documentation

• Don’ts– Never surprise an employee with what you

write.– Don’t document trivial or irrelevant matters– Don’t make “side notes” about individual’s

personal characteristics (“older, attractive woman” – “seems to have chip on his shoulder”)

– Don’t keep “little black book” on employees – if it is worth documenting, document it and let HR Manager review/ place in file.

Documentation Procedures- Do’s and Don’ts

MEMORANDUM FOR Gomer PyleDATE January 30, 2012FROM: SupervisorRE: Warning

On January 30, 2012, you arrived for work at 8:47 a.m. The normally scheduled production shift starts at 6:30 a.m. This is the second time you have shown up to work almost two hours late.

When you were hired you signed for an Employee Handbook. Section 1.7 of the Employee Handbook lists the “regular hours of work” for production employees (6:30a.m. – 3:30 p.m.). Section 1.8 states that an employee “shall not be tardy, and any tardiness can result in discipline, up to and including termination.” This is important because tardiness places a strain upon the business and causes other employees to have to do extra work.”

You are warned that future tardiness will result in further discipline, up to and including termination.

__________________Bob BarkerFirst Shift Supervisor

I acknowledge receipt of this memorandum of oral warning and acknowledge that I have been given 24 hours to submit written comments if I disagree with this.

Received at ____ (a.m./p.m.) on January ___, 2002.

_________________Gomer Pyle

Approved by Manager and/or HR _____ (initials) _______ (date)

The idea

l

– Many, frequently, often– Bad attitude– Insubordination– Work area is “constantly” “dirty”– He was “intoxicated”– Failure to “follow instructions”

Be Descriptive – Watch Pure Conclusions

DATE of Creation Name/SIGNATURE of Author Names/Signatures of Witnesses Proper identification of pages

In Sum, Employment Documents Should Contain:

A Few Words About Performance Reviews

PERFORMANCE REVIEWSBest Practices

– Should be a helpful process– Direct managers/ supervisors should be involved– Facts rather than opinions– LISTEN (don’t just talk)– Be Familiar with form– Trouble expected? Have 2 witnesses.– No informal notes.– Have Employee sign review.

Quotes Reportedly Taken From Actual Performance Evaluations

“Since my last report, this employee has reached rock bottom and started to dig.”

“He sets low personal standards and then consistently fails to achieve them.”

“This employee is depriving a village somewhere of an idiot.”

“Got a full 6-pack, but lacks the plastic thing to hold it all together.”

“A gross ignoramus -- 144 times worse than an ordinary ignoramus.”

“He doesn’t have ulcers, but he’s a carrier.”“When his IQ reaches 50, he should sell.”“If you see two people talking and one

looks bored, he’s the other one.”“A photographic memory but with the

lens cover glued on.”“Some drink from the fountain of

knowledge; he only gargled.”

Quotes Reportedly Taken From Actual Performance Evaluations

Managing Employees: Is there ever a good way to discipline or terminate an

employee?

1) Is this Individual in a Protected Category – if so, what category?a) Race, age, sex, religion, workers’ comp, whistleblower?

2) Are There Similarly Situated Employees? Have you Been Consistent?

a) What happened the last time this situation came up?b) What will you do the next time the situation comes up (are

you prepared to take the same steps).c) If this was your best sales person (or nurse, or whoever),

would you be terminating them?3) Is there a policy which applies to the conduct/ performance

which requires termination/ discipline?4) Have you followed the company’s steps for terminating –

progressive discipline, etc.?

Before Disciplining/Terminating Employee, Ask:

5) DOCUMENTATION: Is there documentation of the conduct/ prior performance issues?

6) Is the Person going to be surprised by this termination/ discipline??

7) Has manager/ HR reviewed decision/ approved?8) How is termination communicated to person

(witness) and others? (gossip?)9) Is this REALLY a terminable offense?

(insubordination/ mitigating factors)?

Before Disciplining/Terminating Employee, Ask:

CCONSTANGY, ONSTANGY, BBROOKS ROOKS SSMITH, LLCMITH, LLCL A B O R E M P L O Y M E N T L A W W O R K S H O P

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Reductions in Force: Key Steps

Best Practices in Termination Meeting

• Speak with Employee during Investigation

• Have Witness in Meetings• The right witness

• Don’t argue with employee – Don’t Allow Manager to Argue Either.

• Security- Is it necessary?

• Don’t kick ‘em in the teeth on the way out (but have paperwork ready)

Best Practices in Termination Meeting

• Side Note: Personnel file –Check with Human Resources regarding their policy about giving out Personnel files BEFORE you respond to any requests!

Final Practice

Follow The Golden RuleAnd The Gold Will Follow!

It’s Not the Big Things . . .

5 Ways to Lift Spirits

1. Write them. 2. Feed them. 3. Look for Opportunities to Recognize

Employees4. Visit Employees in Their Time of

Need5. Praise Employee in front of Spouse

or Children

I’m No Rocket Scientist . . . But

Insanity: doing the same thing over and over again and expecting different results.

Albert EinsteinUS (German-born) physicist (1879 - 1955)

Questions?

John L. WeltinConstangy, Brooks, Smith & Prophete

(478) 621-2402jweltin@constangy.com