Basics of Personnel Basics of Personnel ManagementManagementPresenter:Presenter:

Priscilla Riedel-Cohan, MS, RD, LD, SFNSPriscilla Riedel-Cohan, MS, RD, LD, SFNS

PriDe Performance Consulting, LLCPriDe Performance Consulting, LLC

Components of Managing Components of Managing Employee IssuesEmployee Issues

DiscriminationDiscrimination Interviewing and HiringInterviewing and Hiring Employee’s Privacy RightsEmployee’s Privacy Rights Wage and Hour Laws Wage and Hour Laws Controlling Absence and Managing LeavesControlling Absence and Managing Leaves Performance Appraisals Performance Appraisals Employee DisciplineEmployee Discipline Avoiding Wrongful TerminationAvoiding Wrongful Termination

DiscriminationDiscrimination

Equal Employment OpportunityEqual Employment Opportunity Prohibits discrimination in employment Prohibits discrimination in employment

hiring, firing, compensation and terms, hiring, firing, compensation and terms, conditions or privileges of employment on conditions or privileges of employment on the basis of race, color, religion, sex, the basis of race, color, religion, sex, pregnancy or national origin.pregnancy or national origin.

Affirmative ActionAffirmative Action Prohibits discrimination against any employee or Prohibits discrimination against any employee or

applicant on the basis of race, sex, color, religion, or applicant on the basis of race, sex, color, religion, or national origin and requires affirmative action to national origin and requires affirmative action to ensure that applicants and employees are employed ensure that applicants and employees are employed and advanced in employment without regard to and advanced in employment without regard to race, sex, color, religion, or national origin.race, sex, color, religion, or national origin.

Revisions include requirements for contracting Revisions include requirements for contracting companies to take positive steps toward eliminating companies to take positive steps toward eliminating the present and future effects of past discrimination the present and future effects of past discrimination against women and minorities.against women and minorities.

Age Discrimination in Employment Act (ADEA)Age Discrimination in Employment Act (ADEA) It is unlawful for an employer to fail to, or refuse to It is unlawful for an employer to fail to, or refuse to

hire, to discharge, or otherwise discriminate against hire, to discharge, or otherwise discriminate against individuals 40 years of age or older with respect to individuals 40 years of age or older with respect to compensation, terms, conditions, or privileges of compensation, terms, conditions, or privileges of employment because of age.employment because of age.

It is unlawful to forcibly retire an employee. An It is unlawful to forcibly retire an employee. An exception does exist for executives.exception does exist for executives.

It is unlawful to give preference because of age to It is unlawful to give preference because of age to one person over another within the protected age one person over another within the protected age group.group.

The Older Workers’ Benefit Protection ActThe Older Workers’ Benefit Protection Act Voluntary early retirement plans are permissible, Voluntary early retirement plans are permissible,

and incentives to encourage early retirement are and incentives to encourage early retirement are also allowed.also allowed.

Workers’ Adjustment and Retraining Workers’ Adjustment and Retraining Notification Act (WARN)Notification Act (WARN) Employers must give 60-day advance written notice Employers must give 60-day advance written notice

to employees and local government in the event of a to employees and local government in the event of a closing or mass layoff of 50 or more employees.closing or mass layoff of 50 or more employees.

Rehabilitation Act of 1973Rehabilitation Act of 1973 Government contractors and subcontractors must Government contractors and subcontractors must

take affirmative action to employ, advance in take affirmative action to employ, advance in employment, make reasonable accommodation and employment, make reasonable accommodation and otherwise not discriminate against handicapped otherwise not discriminate against handicapped individuals.individuals.

Americans with Disabilities Act of 1990 (ADA)Americans with Disabilities Act of 1990 (ADA) Prohibits private employers from discriminating Prohibits private employers from discriminating

against individuals with disabilities.against individuals with disabilities. The ADA also prohibits retaliation against an The ADA also prohibits retaliation against an

employee for taking any action pursuant to the Act.employee for taking any action pursuant to the Act.

Pregnancy Discrimination ActPregnancy Discrimination Act An amendment to the Civil Rights Act of 1964 to An amendment to the Civil Rights Act of 1964 to

reinforce a prohibition on employment discrimination reinforce a prohibition on employment discrimination on the basis of sex.on the basis of sex.

Equal Pay Act of 1963Equal Pay Act of 1963 Prohibits pay differentials on the basis of sex.Prohibits pay differentials on the basis of sex.

Civil Rights Action of 1991Civil Rights Action of 1991 Overturns certain Supreme Court decisions and Overturns certain Supreme Court decisions and

offers plaintiffs in discrimination suits the right to jury offers plaintiffs in discrimination suits the right to jury trials and the ability to recover mental anguish and trials and the ability to recover mental anguish and punitive damages.punitive damages.

Interviewing and HiringInterviewing and Hiring

The Recruiting ProcessThe Recruiting Process The Job RequisitionThe Job Requisition

The form or announcement that a job is open and The form or announcement that a job is open and must be filled.must be filled.

Job descriptions are an important component of Job descriptions are an important component of detailing the requirements of the position being detailing the requirements of the position being advertised.advertised.

Sample Job DescriptionSample Job Description

Sample Time and Sample Time and Duties ScheduleDuties Schedule

Sources of ApplicantsSources of Applicants Employee referralsEmployee referrals College placement programsCollege placement programs Social service agenciesSocial service agencies State employment agenciesState employment agencies Newspaper/Magazine advertisingNewspaper/Magazine advertising Job fairsJob fairs Fee agenciesFee agencies Flyers distributed to customersFlyers distributed to customers

Processing RepliesProcessing Replies Respond quickly, courteously and legallyRespond quickly, courteously and legally To the extent that it is possible, eliminate To the extent that it is possible, eliminate

discriminating information from an employee’s discriminating information from an employee’s resume or application file before the applicant is resume or application file before the applicant is thoroughly screened for interview. thoroughly screened for interview.

The Employment ApplicationThe Employment Application Employment applications should be legal.Employment applications should be legal. Recheck applications periodically to make sure Recheck applications periodically to make sure

they do not include potentially illegal questions, they do not include potentially illegal questions, i.e. what year did you graduate high school.i.e. what year did you graduate high school.

Sample Application Sample Application for Employmentfor Employment

Pre-employment ScreeningPre-employment Screening Employers are wise to invest appropriate time and money Employers are wise to invest appropriate time and money

in recruiting the right employee to eliminate potential in recruiting the right employee to eliminate potential liability issues.liability issues.

Vicarious liability imposes liability on employers for the acts Vicarious liability imposes liability on employers for the acts of their employees performed within the scope of their of their employees performed within the scope of their employment.employment.

Negligent hiring arises when an employer knew or should Negligent hiring arises when an employer knew or should have known by conducting a reasonable pre-employment have known by conducting a reasonable pre-employment investigation that an employee was not competent or investigation that an employee was not competent or qualified to perform the job.qualified to perform the job.

Pre-employment TestingPre-employment Testing The easiest tests to defend are content validity The easiest tests to defend are content validity

tests. tests. These include typing tests, requiring a cashier to These include typing tests, requiring a cashier to

make change or truck drivers to drive a truck.make change or truck drivers to drive a truck.

Testing must be lawful in that it must Testing must be lawful in that it must measure significant responsibilities of the job,measure significant responsibilities of the job, predict job performance, have no impact on a predict job performance, have no impact on a

protected class, protected class, have a business necessity, have a business necessity, be administered consistently, and be administered consistently, and administered in the environment where the job is administered in the environment where the job is

usually performed.usually performed.

Pre-employment testing may include:Pre-employment testing may include: Skills testingSkills testing Psychological ExaminationsPsychological Examinations Polygraph TestingPolygraph Testing Honesty TestingHonesty Testing AIDS TestingAIDS Testing Drug and Alcohol TestingDrug and Alcohol Testing

Conducting InterviewsConducting Interviews Research shows that interviewers tend to like Research shows that interviewers tend to like

persons who “look” like themselves.persons who “look” like themselves. Those who conduct interviews need to be trained Those who conduct interviews need to be trained

on how to conduct interviews using only job-on how to conduct interviews using only job-related criteria.related criteria.

Acceptable Pre-employment Acceptable Pre-employment InquiriesInquiries

See attached table.See attached table.

Reference CheckingReference Checking Identify interview/resume data to be verified.Identify interview/resume data to be verified. Prepare for the reference interview with specific Prepare for the reference interview with specific

questions.questions. Open the call by identifying yourself and explain Open the call by identifying yourself and explain

the purpose of the call.the purpose of the call. Ask the series of prepared questions.Ask the series of prepared questions. Close the call thanking the reference for his or Close the call thanking the reference for his or

her time.her time.

Offer LetterOffer Letter Letters are excellent ways of making the Letters are excellent ways of making the

representations for employment known and representations for employment known and outline the terms and conditions of employment.outline the terms and conditions of employment.

Considerations when writing the letter:Considerations when writing the letter: Quote compensation in the lowest denomination Quote compensation in the lowest denomination

possible.possible. Avoid mentioning future deadlines or milestones.Avoid mentioning future deadlines or milestones. Avoid terms such as “permanent” or “career.”Avoid terms such as “permanent” or “career.” Be careful of language mentioning a new employee Be careful of language mentioning a new employee

probation period.probation period. Keep the letter brief.Keep the letter brief. Keep the letter upbeat, but avoid expressions of hope Keep the letter upbeat, but avoid expressions of hope

and optimism.and optimism. Send the original letter and a copy along with a self-Send the original letter and a copy along with a self-

addressed stamped envelope. The new hire signs the addressed stamped envelope. The new hire signs the copy and returns it to the employer.copy and returns it to the employer.

Rejecting Unsuccessful ApplicantsRejecting Unsuccessful Applicants Avoid creating disgruntled applicants by doing Avoid creating disgruntled applicants by doing

the following:the following: Don’t set applicants’ expectations unnecessarily high.Don’t set applicants’ expectations unnecessarily high. Provide a quick response.Provide a quick response. Give polite, considerate responses.Give polite, considerate responses. Indicate that you have selected the candidate who is Indicate that you have selected the candidate who is

the “best fit” for the job, not the “best qualified.”the “best fit” for the job, not the “best qualified.” Avoid becoming involved in discussing the rejected Avoid becoming involved in discussing the rejected

applicants’ qualifications with those of other applicants.applicants’ qualifications with those of other applicants.

Employee’s Privacy Employee’s Privacy RightsRights

Protecting Employee PrivacyProtecting Employee Privacy Approximately half of the states have laws that Approximately half of the states have laws that

provide employees some measure of access to their provide employees some measure of access to their personnel file or other records maintained by their personnel file or other records maintained by their employers.employers.

Some state laws allow employees to correct errors Some state laws allow employees to correct errors or omissions in their personnel files.or omissions in their personnel files.

No comprehensive federal law regulates employee No comprehensive federal law regulates employee access to records in the private sector.access to records in the private sector.

Medical information must be treated as confidential.Medical information must be treated as confidential.

Computer and phone usage may be Computer and phone usage may be monitored utilizing employee acceptable use monitored utilizing employee acceptable use policies that are consistently enforced.policies that are consistently enforced.

Employee desks, lockers, and storage areas Employee desks, lockers, and storage areas are subject to employer search and seizure. are subject to employer search and seizure. It is typically recommended that the It is typically recommended that the employer’s option be noted in the employee employer’s option be noted in the employee handbook therefore placing all employees handbook therefore placing all employees on notice of such potential action.on notice of such potential action.

Maintaining Lawful FilesMaintaining Lawful Files Central personnel files are necessary.Central personnel files are necessary. ““Local” files by supervisors should be limited to Local” files by supervisors should be limited to

copies only.copies only. Reasons for central filing are:Reasons for central filing are:

To maintain quality control of documents.To maintain quality control of documents. To help guide uniform treatment of employees.To help guide uniform treatment of employees. To help the human resources department spot recurring To help the human resources department spot recurring

problems and training needs.problems and training needs. To help accurately assess and maintain the strength of the To help accurately assess and maintain the strength of the

employer’s position with regard to legal protection.employer’s position with regard to legal protection.

Wage and Hour LawsWage and Hour Laws

Exempt or Non-Exempt?Exempt or Non-Exempt? Exempt “white-collar” employees are exempt from Exempt “white-collar” employees are exempt from

minimum wage and overtime provisions of the Fair minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA)Labor Standards Act (FLSA)

Exemption is NOT determined by the title of the job, Exemption is NOT determined by the title of the job, but by the nature of the duties actually performed.but by the nature of the duties actually performed.

Exempt employees typically include:Exempt employees typically include: ExecutiveExecutive AdministrativeAdministrative ProfessionalProfessional Outside salespersonOutside salesperson

Regular Rate of PayRegular Rate of Pay ““Regular rate” of pay is usually defined as all Regular rate” of pay is usually defined as all

remuneration for employment paid to, or on behalf remuneration for employment paid to, or on behalf of the employee, but shall not be deemed to include:of the employee, but shall not be deemed to include: Sums paid as giftsSums paid as gifts Payments made for occasional periods when no work is Payments made for occasional periods when no work is

performed, i.e. vacationsperformed, i.e. vacations Sums paid in recognition of services performed during a Sums paid in recognition of services performed during a

given period, i.e. sharing plans or year-end distributionsgiven period, i.e. sharing plans or year-end distributions Contributions irrevocably made by an employer to a trustee Contributions irrevocably made by an employer to a trustee

or third personor third person Extra compensation provided as overtime pay or weekend Extra compensation provided as overtime pay or weekend

pay as well as that provided as a part of a collective pay as well as that provided as a part of a collective bargaining agreement.bargaining agreement.

Determining Hours WorkedDetermining Hours Worked All employees covered by the FLSA must be paid at All employees covered by the FLSA must be paid at

least a minimum wage for all hours worked and least a minimum wage for all hours worked and overtime for all overtime hours.overtime for all overtime hours.

Only bona fide volunteers are exempt from this Only bona fide volunteers are exempt from this provision.provision.

Time in which the employee is “waiting to be Time in which the employee is “waiting to be engaged” is not required to be compensated, i.e. engaged” is not required to be compensated, i.e. scheduled meal periods.scheduled meal periods.

Other “waiting time” is not required to be Other “waiting time” is not required to be compensated.compensated.

Maintaining Exempt Status of Salaried Maintaining Exempt Status of Salaried EmployeesEmployees Salaried employees are not necessarily exempt Salaried employees are not necessarily exempt

employees.employees. Employees receiving salary must be receiving the Employees receiving salary must be receiving the

minimum “salary basis” to continue to qualify as minimum “salary basis” to continue to qualify as exempt.exempt.

Salaried employees typically cannot be “docked” Salaried employees typically cannot be “docked” pay in any week in which he or she performs any pay in any week in which he or she performs any work. The exception to this rule is as it related to work. The exception to this rule is as it related to the Family Medical Leave Act (FMLA).the Family Medical Leave Act (FMLA).

Fair Labor Standards Act (FLSA)Fair Labor Standards Act (FLSA) The employer must pay a minimum wage per hour. The employer must pay a minimum wage per hour. Overtime must be paid after 40 hours/week at the rate of time Overtime must be paid after 40 hours/week at the rate of time

and one-half of the employee’s basic rate.and one-half of the employee’s basic rate. Equal Pay Act of 1963Equal Pay Act of 1963

Prohibits pay differentials on the basis of sex.Prohibits pay differentials on the basis of sex. Davis-Bacon ActDavis-Bacon Act

Requires federal construction contractors to pay mechanics Requires federal construction contractors to pay mechanics and laborers “prevailing” wages and fringe benefits on and laborers “prevailing” wages and fringe benefits on federally funded construction projects.federally funded construction projects.

Walsh-Healey Public Contracts ActWalsh-Healey Public Contracts Act Requires manufacturers and dealers supplying the Requires manufacturers and dealers supplying the

federal government to pay the prevailing minimum federal government to pay the prevailing minimum wage for straight time hours, pay time and one-half wage for straight time hours, pay time and one-half employees’ basic rates for hours worked in excess employees’ basic rates for hours worked in excess of 4- hours in a workweek, not employ any person of 4- hours in a workweek, not employ any person under the age of 16 years, not employ convict labor, under the age of 16 years, not employ convict labor, maintain sanitary and non-hazardous working maintain sanitary and non-hazardous working conditions, and post the law’s requirements in a conditions, and post the law’s requirements in a prominent place.prominent place.

Service Contract ActService Contract Act Employer required to notify employees of statutory Employer required to notify employees of statutory

wage rights.wage rights.

Consumer Credit Protection ActConsumer Credit Protection Act Restricts garnishment withholding to the lesser of Restricts garnishment withholding to the lesser of

25% of an employee’s weekly disposable income or 25% of an employee’s weekly disposable income or the amount by which the employee’s weekly the amount by which the employee’s weekly disposable earnings exceed 30 times the federal disposable earnings exceed 30 times the federal minimum hourly wage.minimum hourly wage.

Controlling Absence and Controlling Absence and Managing LeavesManaging Leaves

Attendance problems can be reduced by the Attendance problems can be reduced by the following:following: Establish and maintain standardsEstablish and maintain standards Separate sick leave from absence standardsSeparate sick leave from absence standards Follow a progressive counseling policy for violationsFollow a progressive counseling policy for violations Use the hire/orientation period for new employeesUse the hire/orientation period for new employees Publicize your interest in good attendancePublicize your interest in good attendance Strive for consistencyStrive for consistency

Attendance Issues Under the ADAAttendance Issues Under the ADA Attendance policies must be applied neutrally and Attendance policies must be applied neutrally and

consistently to all employees.consistently to all employees. Regular attendance may be required if it is Regular attendance may be required if it is

necessary to an “essential job function.”necessary to an “essential job function.” There is no requirement for employees to be There is no requirement for employees to be

allowed to work only when they are able.allowed to work only when they are able. Absences due to a disability are treated differently Absences due to a disability are treated differently

than those that are not due to a disability.than those that are not due to a disability.

Absences due to medical problems are Absences due to medical problems are case-by-case depending on the individual’s case-by-case depending on the individual’s disability. Considerations are given to disability. Considerations are given to migraine headaches, infertility, alcoholics, migraine headaches, infertility, alcoholics, and drug addicts.and drug addicts.

Employers are not required to provide an Employers are not required to provide an opportunity for rehabilitation.opportunity for rehabilitation.

Reasonable accommodation is required for Reasonable accommodation is required for employees who are disabled.employees who are disabled.

Attendance Issues Under the FMLAAttendance Issues Under the FMLA Intermittent or reduced work schedule leave may be Intermittent or reduced work schedule leave may be

part of FMLA.part of FMLA. Chronic absenteeism may be designated as FMLA Chronic absenteeism may be designated as FMLA

leave if a long-term medical condition is causing leave if a long-term medical condition is causing such absences.such absences.

Employees have a responsibility to notify their Employees have a responsibility to notify their supervisors of a foreseeable need for FMLA leave.supervisors of a foreseeable need for FMLA leave.

Leave may be delayed by 30 days if reasonable Leave may be delayed by 30 days if reasonable notice was not provided to the employer and the notice was not provided to the employer and the leave was foreseeable.leave was foreseeable.

Employers have a right to require medical Employers have a right to require medical certifications to support FMLA and returns to certifications to support FMLA and returns to work.work.

FMLA does not count against an employee FMLA does not count against an employee as a part of the absentee policy.as a part of the absentee policy.

Childbirth, adoption, and foster care leave Childbirth, adoption, and foster care leave may be negotiated with the employee under may be negotiated with the employee under FMLA.FMLA.

Returning the Injured Employee to WorkReturning the Injured Employee to Work Light duty work may be required when a Light duty work may be required when a

worker is “re-employed.”worker is “re-employed.” Reasonable accommodation may be an Reasonable accommodation may be an

alternative to light duty.alternative to light duty. Implementing a light duty program can be an Implementing a light duty program can be an

effective way to transition employees back effective way to transition employees back into the job.into the job.

Holding Open the JobHolding Open the Job The decision on whether or not to hold a job The decision on whether or not to hold a job

open depends on economics and open depends on economics and compliance with company policy.compliance with company policy.

Considerations include:Considerations include: Duration of the leaveDuration of the leave The nature of the jobThe nature of the job The availability of someone to fill the positionThe availability of someone to fill the position

Performance AppraisalsPerformance Appraisals

The Legal Context The Legal Context No state or federal law requires employee No state or federal law requires employee

appraisals.appraisals.

ImplementationImplementation Performance appraisals should be based on:Performance appraisals should be based on:

Job analysisJob analysis Specific and objective evaluation criteriaSpecific and objective evaluation criteria Advance notice of job standardsAdvance notice of job standards Evaluation by a higher level of management Evaluation by a higher level of management

before given to the employeebefore given to the employee

The best appraisal discussions are:The best appraisal discussions are: DescriptiveDescriptive Solution-OrientedSolution-Oriented EmpathicEmpathic EqualEqual ProvisionalProvisional Cause-Oriented Cause-Oriented

Pitfalls of Negligent Performance Pitfalls of Negligent Performance AppraisalsAppraisals Appraisal does not adequately identify an Appraisal does not adequately identify an

employee’s shortcomingsemployee’s shortcomings Poor performance appraisal costs an Poor performance appraisal costs an

employee their job based on false negative employee their job based on false negative or inaccurate informationor inaccurate information

The Consequences of CharityThe Consequences of Charity Charitable appraisals result from lack of Charitable appraisals result from lack of

supervisory self-discipline.supervisory self-discipline. The problem may go away by itself.The problem may go away by itself. There is no assurance that a replacement There is no assurance that a replacement

employee will be any better.employee will be any better. Some supervisors are powerless to make Some supervisors are powerless to make

replacements.replacements.

Advantages of Being CandidAdvantages of Being Candid Supports successful defense of a possible Supports successful defense of a possible

future negative personnel decision.future negative personnel decision. Helps to maximize long-term productivity of Helps to maximize long-term productivity of

the organization as a whole.the organization as a whole. Has a morale enhancing effect on the entire Has a morale enhancing effect on the entire

work force.work force.

DocumentationDocumentation Follow important personnel actions with Follow important personnel actions with

documentation promptly.documentation promptly. Ignore minor issues and focus on important Ignore minor issues and focus on important

incidents and behaviors which reflect significantly on incidents and behaviors which reflect significantly on employee job performance and conduct.employee job performance and conduct.

Focus on job-related standards and behaviors.Focus on job-related standards and behaviors. Avoid using pre-printed forms on which to record Avoid using pre-printed forms on which to record

documentation.documentation.

Get the employee’s side of the story on Get the employee’s side of the story on record, preferably on the documentation record, preferably on the documentation itself.itself.

Avoid the risk that documentation will create Avoid the risk that documentation will create the impression of retaliation.the impression of retaliation.

Take action to bridge past warnings.Take action to bridge past warnings.

Employee DisciplineEmployee Discipline

Progressive Employee DisciplineProgressive Employee Discipline Level I: The Oral WarningLevel I: The Oral Warning Level II: The Written WarningLevel II: The Written Warning

Address the employeeAddress the employee Write professionallyWrite professionally State the problem or violationState the problem or violation State the employment rule, policy or practice State the employment rule, policy or practice

regarding the situationregarding the situation

State how the action of the employee is hurting State how the action of the employee is hurting business operationsbusiness operations

Refer to previous warnings about other Refer to previous warnings about other performance problemsperformance problems

Set forth a corrective action plan to remedy the Set forth a corrective action plan to remedy the deficient performancedeficient performance

Include consequences for failure to improve.Include consequences for failure to improve.

There is no criteria on how many warnings must be There is no criteria on how many warnings must be allowed before an employee can be discharged.allowed before an employee can be discharged.

Considerations include:Considerations include: The seriousness of the matter.The seriousness of the matter. Interval since prior warning.Interval since prior warning. Company practice in similar situations with other Company practice in similar situations with other

employees.employees. The employee’s length of service.The employee’s length of service. The employee’s overall record.The employee’s overall record. Compelling need for individual consideration.Compelling need for individual consideration. Unfortunate timing which might cast doubt on the Unfortunate timing which might cast doubt on the

employer’s motives.employer’s motives.

Level III: Probation/SuspensionLevel III: Probation/Suspension Investigative suspension allows you to remove the Investigative suspension allows you to remove the

employee from the workplace for a given time to employee from the workplace for a given time to investigate the circumstances surrounding a given incident.investigate the circumstances surrounding a given incident.

Disciplinary suspension allows removal of the employee Disciplinary suspension allows removal of the employee from the workplace as a punishment for a given action or from the workplace as a punishment for a given action or behavior.behavior.

Decision-making suspension allows you to give the Decision-making suspension allows you to give the employee a short time off (with pay) to consider his or her employee a short time off (with pay) to consider his or her behavior and decide if the employee wants to meet your behavior and decide if the employee wants to meet your standards to keep his or her job.standards to keep his or her job.

Probation is a specified time allowed for the Probation is a specified time allowed for the employee to demonstrate improved employee to demonstrate improved performance.performance.

Level IV: Final Warning and TerminationLevel IV: Final Warning and Termination Under no circumstances should an employee be Under no circumstances should an employee be

fired on the spot.fired on the spot. Suspend the employee, meet with your manager, Suspend the employee, meet with your manager,

gather documentation and plan a time for gather documentation and plan a time for dismissal.dismissal.

Final Thoughts on DisciplineFinal Thoughts on Discipline Don’t keep secrets about performance.Don’t keep secrets about performance. Don’t institute progressive discipline without getting Don’t institute progressive discipline without getting

backing from your manager.backing from your manager. Refrain in write documentation from anything other Refrain in write documentation from anything other

than facts and comments on observed behavior.than facts and comments on observed behavior. Be sure to investigate an employee’s claims of Be sure to investigate an employee’s claims of

mitigating circumstances.mitigating circumstances. Check to see how similar terminations have been Check to see how similar terminations have been

handled in the past.handled in the past.

Avoiding Wrongful Avoiding Wrongful TerminationTermination

Think Before You ActThink Before You Act Do not act on impulse!Do not act on impulse!

Some Basic Legal ConceptsSome Basic Legal Concepts The “Reasonable Person” doctrine implies that a supervisor The “Reasonable Person” doctrine implies that a supervisor

has a sound business reason for the action taken.has a sound business reason for the action taken. Past practice supersedes current policy, so follow established Past practice supersedes current policy, so follow established

policies that are in place to help guard your position.policies that are in place to help guard your position. Follow antidiscrimination law. Consider if your action has an Follow antidiscrimination law. Consider if your action has an

adverse effect on a member of a protected class or category, adverse effect on a member of a protected class or category, is held to a neutral standard based on legitimate business is held to a neutral standard based on legitimate business necessity, and whether or not you have offered reasonable necessity, and whether or not you have offered reasonable accommodation.accommodation.

Treat cases alike, but don’t treat everyone Treat cases alike, but don’t treat everyone identically.identically.

Remember, voluntary resignation does not Remember, voluntary resignation does not exempt an employer from a potential lawsuit.exempt an employer from a potential lawsuit.

Avoid defamation when explaining to Avoid defamation when explaining to remaining staff why an employee has been remaining staff why an employee has been discharged.discharged.

Lawful termination begins long before the Lawful termination begins long before the actual event.actual event.

In general:In general: Inform employees of company policies when Inform employees of company policies when

they are hiredthey are hired Establish clear and written behavior Establish clear and written behavior

standardsstandards Use an honest and informative performance Use an honest and informative performance

evaluation systemevaluation system

When problems occur:When problems occur: Investigate the facts before you actInvestigate the facts before you act Use a progressive disciplinary systemUse a progressive disciplinary system Document at each step of the disciplinary Document at each step of the disciplinary

processprocess Be consistentBe consistent

As you consider termination:As you consider termination: Review the employee’s personnel fileReview the employee’s personnel file Consider transferring or reassigning the employee Consider transferring or reassigning the employee

to an alternative position as opposed to terminatingto an alternative position as opposed to terminating Termination decisions should be approved by at Termination decisions should be approved by at

least two managersleast two managers Review all company handbooks, policies and other Review all company handbooks, policies and other

documents that address handling terminationsdocuments that address handling terminations

When you decide to terminate:When you decide to terminate: Do not terminate employees based on false pretextDo not terminate employees based on false pretext Involve human resources and possibly your Involve human resources and possibly your

employment attorney at the earliest opportunityemployment attorney at the earliest opportunity Make the termination process efficient and Make the termination process efficient and

confidentialconfidential Conduct discharge interviews and exit procedures in Conduct discharge interviews and exit procedures in

a sensitive, humane, and considerate mannera sensitive, humane, and considerate manner Conduct exit interviews upon all resignations or Conduct exit interviews upon all resignations or

dischargesdischarges Consider offering employees outplacement services Consider offering employees outplacement services

to ease the blow of terminationto ease the blow of termination

How to Fire an EmployeeHow to Fire an Employee PreliminaryPreliminary

Cool downCool down Take care of administrative detailsTake care of administrative details Outline beforehand critical points to cover during Outline beforehand critical points to cover during

the discharge interviewthe discharge interview Use a private place other than your office—so Use a private place other than your office—so

you can leaveyou can leave

The Discharge Interview (10-15 minutes)The Discharge Interview (10-15 minutes) Get directly to the pointGet directly to the point State reasons for terminationState reasons for termination Don’t encourage employee hopes that might Don’t encourage employee hopes that might

change your decisionchange your decision Don’t suggest self-improvementDon’t suggest self-improvement Accept and hear the employee’s feelings, but Accept and hear the employee’s feelings, but

stick to your gunsstick to your guns Re-direct conversation to the futureRe-direct conversation to the future Close quicklyClose quickly

Document the interviewDocument the interview Inform all associates that have a business Inform all associates that have a business

need-to-knowneed-to-know Arrange an exit interview with a third partyArrange an exit interview with a third party Close all personnel business in a timely Close all personnel business in a timely

manner.manner.

Manager’s Pre-Manager’s Pre-Dismissal ChecklistDismissal Checklist

Questions and Questions and AnswersAnswers

ReferencesReferences

Council on Education in Management. Council on Education in Management. (1995) (1995) Personnel Law for Supervisors. Personnel Law for Supervisors. Borgman Associates.Borgman Associates.