the ten deadly questions

www.kpaonline.com(866) 356-1735

The Ten Deadly QuestionsThank you for joining the webinar.

We will begin at 10am Mountain Standard Time.

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SpeakersSpeakers

Moderator Presenter

Becky RossMarketing Manager

303-228-8753

bross@kpaonline.com

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

650-712-8908jboggs@employerlawyers.com

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QuestionsQuestions

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

• Questions will be answered at the end of the webinar

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AgendaAgenda

• Performance Improvement Plans– Performance Deficiencies– Rule Violations

• The Ten Deadly Questions• Termination Checklist• Conducting the Termination

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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 TerminationTwo Reasons for Discipline or Termination

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Rule Violations

F.I.N.E.Find Published Rule (Employee Handbook)

Identify Specifics of How Rule was Broken

Notice as to What is Expected

Explain Outcome if Continues or Decision Now

Discipline/TerminationDiscipline/Termination

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Performance Deficiencies

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

1. Performance Deficiency2. What Must Be Done

Assistance to ImproveTime to improve

Discipline/TerminationDiscipline/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 Avoidance The Appearance of DiscriminationDiscrimination

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 ChecklistLegal 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?

Legal Liability ChecklistLegal Liability Checklist

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.)

Legal Liability ChecklistLegal Liability Checklist

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.

Legal Liability ChecklistLegal Liability Checklist

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.)

Legal Liability ChecklistLegal Liability Checklist

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

Legal Liability ChecklistLegal Liability Checklist

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

Legal Liability ChecklistLegal Liability Checklist

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?

Legal Liability ChecklistLegal Liability Checklist

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

Legal Liability ChecklistLegal Liability Checklist

10. Do you plan to terminate the employee?

Legal Liability ChecklistLegal Liability Checklist

Does Your Investigation Prove it?

• Document the complaint• Who, What, When, Where,

Witnesses, etc.• Collect Relevant Documents

Build Your CaseBuild Your Case

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 CaseBuild Your Case

More Investigation = More Credibility• Confront the Accused – A

Chance to Explain• Have a witness

• Prepare a wrap-up memorandum

• Prepare a written termination notice

• Consult counsel prior to termination

Build Your CaseBuild Your Case

Misconduct Termination

• Follow up with Statements for other witnesses if necessary

Build Your CaseBuild 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 DecisionsAvoid 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 DecisionsAvoid 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

FREE CONSULTING TIME!!!FREE CONSULTING TIME!!!

Next Webinar: Earn 1.5 HRCI Credits!Next Webinar: Earn 1.5 HRCI Credits!

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Register at: www.kpaonline.com/webinars

Hard Conversations: How to Have Tough Talks with Employees

Thursday, November 4th

•9am – 10:30am Pacific•10am – 11:30am Mountain•11am – 12:30pm Central•12pm – 1:30pm Eastern

Presented by Kathryn Carlson

This program has been pre-approved for 1.5 (General) recertification credit hours toward PHR, SPHR and GPHR recertification through the HR Certification Institute.

The use of the HRCI seal is not an endorsement by the HR Certification Institute of the quality of the program. It means that this program has met the HR Certification Institute's criteria to be pre-approved for recertification credit.

Contact UsContact Uswww.kpaonline.com

bross@kpaonline.com

866-356-1735

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A copy of the recorded webinar and presentation slides will be emailed to you today.