how to fire without triggering a firestorm

– KPA CONFIDENTIAL –

How to Fire Without Triggering a Firestorm

October 7, 2010

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 or an emailed response will be provided

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Required Documentation Prior to Termination

Required Documentation Prior to Termination


1 ) Job Description

2) Performance Appraisals

3) Disciplinary Actions

Tip: You must document everything in writing and it must be objective and non discriminatory

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10 Steps to Effective Disciplinary Action10 Steps to Effective Disciplinary Action

1. Address the problem as soon as possible2. Set a specific time and place3. Sit, don’t stand4. Private location5. Focus on the issue, not the person6. Be specific about the concern7. Be collaborative8. Avoid negative statements9. Encourage the subordinate10. Document the meeting


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Documentation for Disciplinary ActionsDocumentation for Disciplinary Actions

• Always document the conversation– Notes if a feedback session or oral warning

• Time, location, attending, issue, resolution, follow-up

– Disciplinary Action Form if a serious offense


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The Ten Deadly QuestionsThe Ten Deadly Questions

Tip: Before you termination answer these questions....

“Ten Deadly Questions” provided by John Boggs of Fine, Boggs and Perkins


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?

Ten Deadly QuestionsTen Deadly Questions

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? (for example: 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) .


4. If the employee falls into a "protected category" (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) and 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?


10. Do you plan to terminate the employee?


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Termination after Work Comp Injury-It’s Complicated!

Termination after Work Comp Injury-It’s Complicated!

FMLA

Work CompADA


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Where The Laws OverlapWhere The Laws Overlap

• An employee with an injury covered under workers' compensation may be protected by the ADA, but is not automatically protected. To be protected by the ADA, the employee must meet the definition of disability. The ADA does not require an employer to provide a reasonable accommodation for an employee with an occupational injury who does not have a disability as defined by the ADA (EEOC, 1996)

• An employee with an injury may also be covered by FMLA if employer is required to offer FMLA leave• IF the employee is eligible for leave under the FMLA and the injury is considered a "serious health

condition," the WC leave should be treated under the FMLA. The FMLA defines serious health condition broadly to include any "illness, injury, impairment, or physical or mental condition that involves" either inpatient care or continuing treatment by a health care provider. The statute does not distinguish between work-related and nonwork-related injuries. Thus, any on-the-job injury that requires an employee to take leave to seek inpatient care or continuing treatment likely will be covered by the FMLA

• In order to deduct the time spent on WC leave from an employee’s annual FMLA leave entitlement, the employer must notify the employee in writing that the WC leave is designated as FMLA leave and will count against, and run concurrently with, the employee’s 12-week entitlement. The notice to the employee must detail the specific obligations of the employee while on FMLA leave and explain the consequences of a failure to meet these obligations. Most employers use the Department of Labor’s Form WH-381 to comply with these notice requirements. If the employer does not provide the notice, it cannot count the WC leave towards the 12-week FMLA entitlement. Therefore, the employee may be entitled to an additional 12 weeks of FMLA leave at a later date

• If the employee is covered under the FMLA, he must be reinstated to the same or an equivalent position. If the employee does not return to work at the end of the 12-week FMLA leave, the employer may terminate the employee without violating the FMLA as long as the termination is consistent with the treatment of similarly-situated employees who have taken FMLA leave. However, the employee must have been properly placed on FMLA leave and notified that the time off for WC leave ran concurrently with the FMLA. In addition, a few state have WC laws that require reinstatement regardless of the length of the WC leave. As a further complication, the employee may be considered disabled under the Americans with Disabilities Act and, therefore, may be entitled to additional leave as an accommodation.


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So Can I Fire Them?So Can I Fire Them?

Employers may not fire or threaten to fire an employee to discourage him from or punish him for making a claim under the workers' compensation law

The law doesn't say that you can't fire someone who is taking advantage of their rights under the workers' compensation law

It also doesn't say that you must keep employing a workers' compensation claimant indefinitely merely because the comp claim has been madeWhat the law says is that you can't fire anyone because they planned to or have availed themselves of their workers' compensation rights. YOU CAN FIRE FOR POOR PERFORMANCE IF PROPERLY DOCUMENTED.

Tip: The burden of proof will be on the employer not the terminated employee


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Warning Signs Of ViolenceWarning Signs Of Violence

• Evidence of earlier violent behavior or threatening behavior

• States intention to hurt someone (can be verbal or written)

• Holds grudges • Intimidating behavior • Argumentative • Displays unwarranted anger • Uncooperative, impulsive, easily

frustrated • Challenges peers and authority

figures • Increase in personal stress • Serious family or financial

problems • Suspicious of others • Believes he/she is entitled to

something

• Cannot take criticism • Feels victimized • Shows a lack of concern for the

safety or well-being of others • Blames others for his problems or

mistakes • Marked changes in mood or

behavior • Irrational beliefs and ideas • Appears depressed or expresses

hopelessness or heightened anxiety

• Marked decline in work performance

• Socially isolated • Sees the company as a "family" • Has an obsessive involvement

with his or her job • Abuses drugs or alcohol

Adapted from OSHA Fact Sheet “Workplace Violence”


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Physical Signs of ViolencePhysical Signs of Violence

• Red-faced or white-faced • Sweating • Pacing, restless, or repetitive movements • Trembling or shaking • Clenched jaws or fists • Exaggerated or violent gestures • Change in voice • Loud talking or chanting • Shallow, rapid breathing • Scowling, sneering or use of abusive language • Glaring or avoiding eye contact • Violating your personal space (they get too close)


Termination for CauseTermination for Cause

Ensure the employee is not a danger to themselves or to other employees, contact law enforcement if necessary for assistance or to report illegal acts

Include the employee’s supervisor and either a Human Resources representative, or the supervisor’s manager

Remain polite and respectful

Do not allow the employee to argue surrounding the circumstance of termination

Obtain the return of all company property

Provide termination paperwork

Enable the employee to ask questions about the end of employment

Escort the former employee our of the building with the understanding the if they return they are trespassing

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Termination for Non-PerformanceTermination for Non-Performance

Include the employee’s supervisor and either a Human Resources representative, or the supervisor’s manager

Be straight forward, civil, concise and compassionate

Provide termination paperwork

Respect the person's dignity, allow them to speak if they wants to and ask any questions they may have

Don't become angry or argue with the employee, stay “on script”

Collect all company property or determine its location

Give the employee a choice about who among the meeting attendees will walk her out of the building. Give the employee a choice about whether she wants to remove personal belongings from her work station now or after hours

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Reducing Workplace Violence After Termination

Reducing Workplace Violence After Termination

Increase security immediately and in the “golden week” aftertermination

Be straight forward, civil, concise and compassionate Provide managers with a written script that tells them exactly

what to say and what to avoid. Role play the separation beforehand

Keep the actual termination meeting brief, say ten or fifteen minutes. There's no good way to say, "Your job is ending,”

Collect keys or other access devices to prevent unauthorized access, copying or "lost" security cards

Be generous with severance pay. Rule of thumb: one month of pay for the first year of service, and either one or two weeks of pay per year of service

Listen for fallout. If you hear, "I'm going to get even," "You'll be sorry for this," or similar comments, take them seriously

Resist the urge to return threats. Instead, offer support: "That sounded like a threat, Jim, you must be really angry. I'd like to hear more about it." Disarm anger by listening and showing empathy.

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Questions and AnswersQuestions and Answers


QUESTIONS?

Contact InformationContact Information

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how to fire without triggering a firestorm

Business

human resources

general rule

wc leave

compensation

straight forward

fmla leave

performance

continuing