up to and including termination of employment.and termination of employment presented presented byby...

© 2015 TPO The HR Experts All Rights Reserved www.tpohr.com1

“…“…UP TO AND INCLUDING UP TO AND INCLUDING TERMINATION OF EMPLOYMENT”TERMINATION OF EMPLOYMENT”

The Cornerstones of Disciplinary Action The Cornerstones of Disciplinary Action and Termination of Employmentand Termination of Employment

PRESENTED PRESENTED BYBY

© 2015 TPO The HR Experts - The Saqui Law Group All Rights Reserved

Robert P. Russell, SPHRRobert P. Russell, SPHRLic: PILic: PI‐‐2563825638

Kimberley Worley, Esq. Kimberley Worley, Esq.

PROGRAM OVERVIEWPROGRAM OVERVIEW

“…UP TO and INCLUDING TERMINATION of EMPLOYMENT”“…UP TO and INCLUDING TERMINATION of EMPLOYMENT”

• Resolution of Conflicts (Hint…Make Good Hiring Decisions!)

• Employee Handbook Considerations – Drafting Do’s & Don’ts

• Progressive Discipline – Just What Does that Mean?

• Employment at Will – How to Protect Itp y

• Arbitration Agreements – Uses and Enforceability

• The Decision to Terminate – Do’s & Don’ts

• Separation Agreements –When, Why & How

• The Termination Process – The How‐To’s: A Checklist

• Final Pay Requirements – Get this Right!

• Questions & Answers

THE CORNERSTONES OF DISCIPLINARY ACTION & TERMINATION OF EMPLOYMENT


Hire the Right Fit!Hire the Right Fit!

ABILITIES

Can they do the job based on past education and experience?

INTERESTSAre they motivated to do the job well and

committed to stay with the organization?

MANAGEABILITY

Will they accept direction, manage stress, and

get along with others?



Resolution of ConflictsResolution of Conflicts

Seek FIRST to UNDERSTAND …

THEN be UNDERSTOOD!

1. Set Clear EXPECTATIONS

2. Provide Regular FEEDBACK

3. Actively LISTEN

4. Press the PAUSE Button

5. DECIDE on Action (if any)

6. FOLLOW‐UP (+ and ‐)

7. Document

ALIGN • ENGAGE • EXECUTE!© 2015 TPO The HR Experts - The Saqui Law Group All Rights Reserved

Employee Handbook ConsiderationsEmployee Handbook Considerations

Properly drafted and implemented, Employee Handbooks play a critical role in communicating

ti l i f ti b t

PRIMARY HANDBOOK COMPONENTS

At‐Will Employment

Discrimination & Harassment

Basic Wage & Hour Lawsessential information about:

Benefits

Policies and

Performance Standards

to all employees.

Breaks, Meals, Overtime, Timekeeping

Leaves of Absence

Privacy Issues

Drugs & Alcohol at Work

Workplace Violence

Acknowledgement

KEEP IT CURRENT with REGS & YOUR PRACTICES!© 2015 TPO The HR Experts - The Saqui Law Group All Rights Reserved

Progressive Discipline…Progressive Discipline…Just What Does That Mean?Just What Does That Mean?

Based on a thorough review, measured Based on a thorough review, measured and and appropriate corrective appropriate corrective response response

options may includeoptions may include::

A process or method that attempts to address and correct an employee’s work performance or inappropriate workplace behavior by providing clear and constructive feedback through a series of increasingly formal steps.

IS IT:p yp y

Plan For IMPROVEMENT

Verbal or Written COUNSELING

Written DISCIPLINE

Disciplinary PROBATION

DEMOTION

SUSPENSION

CONDITIONAL EMPLOYMENT AGREEMENT

TERMINATION

CONDUCT

PERFORMANCE, or

BOTH?

It Matters!



Employment at WillEmployment at WillHow to Protect itHow to Protect it

HOW TO PROTECT IT?

• APPLICATION FOR EMPLOYMENT

• EMPLOYMENT AGREEMENTS

Employment is presumed to be 'at will'; that is, the employer is free to discharge individuals 'for good cause, or bad cause, or no cause at all,' and the employee is equally free to quit, strike, or otherwise cease work.

EMPLOYMENT AGREEMENTS

• EMPLOYEE HANDBOOK

• HANDBOOK ACKNOWLEDGEMENT

• INTRODUCTORY PERIODS

• DISCIPLINARY ACTION

• DOCUMENTATION

EXCEPTIONS: Contracts /Good Fa i th & Fa i r Dea l ing/Publ ic Pol icy/DISCRIMINATION!


Arbitration AgreementsArbitration AgreementsUse and EnforceabilityUse and Enforceability

•• What is an Arbitration Agreement?What is an Arbitration Agreement?– Requires employees, as a term of their employment, to waive their right to a jury trial and or participation in a class action or collective claims (if a valid class action waiver is found) and have their employment related disputes heard by an p y p yarbitrator.

– Typically conducted by a retired Judge and has a more relaxed setting than a court room.

– In our opinion, it is best to have an arbitration agreement that requires the arbitrator to follow the law of the land.

• Depending on the language of the arbitration agreement the arbitrator can use his/her own rules.


Arbitration AgreementsArbitration Agreements

•• Why Arbitration?Why Arbitration?– An arbitrator is typically an experienced expert in employment law and can render an impartial verdict whereas a pjury can rely on emotion and misperceptions of the law.

– While the Employer must foot the bill for the costs of the arbitration fees, arbitrator’s findings are often in favor of the employer.



Arbitration AgreementsArbitration Agreements

•• How to Use and Enforce Your Arbitration How to Use and Enforce Your Arbitration Agreement?Agreement?– Implement a valid stand‐alone agreement that has been tested in the courts

Th hl l i th t d b bl t th t– Thoroughly explain the agreement and be able to prove that you explained the agreement.

– Employers should also be prepared to litigate with respect to the enforceability of the arbitration agreement. A plaintiffs’ attorney will stop at nothing to invalidate the agreement.


The Decision to TerminateThe Decision to TerminateDo’s & Don’tsDo’s & Don’ts

• Accelerating the Resignation

• Involuntary Termination

• Documentation

• Job Abandonment

• Failure to Return from Leave

• Authority

• Suspend Pending Review



First and foremost, is it fairfair?

Is termination appropriateappropriate for the situation?

A PREA PRE‐‐TERMINATION CHECKTERMINATION CHECK‐‐LISTLIST

Have the employer’s policiespolicies been followed leading up to the termination?

Does the employeeemployee have a valid, overriding explanationexplanation?

Have we been consistent in disciplining consistent in disciplining other employees for similar violations or performance problems?

If there are inconsistencies, what valid inconsistencies, what valid reasonreason(s(s) exist to deviate from established practice(s) in this instance?

Have we documenteddocumented all of the facts since first learning of the conduct or performance problem?




Will this termination violate any public policypublic policy??

Are the employee’s evaluations employee’s evaluations consistent with this action?

How long has the operation toleratedtolerated the conduct or performance problem?

A PREA PRE‐‐TERMINATION CHECKTERMINATION CHECK‐‐LIST LIST ‐‐ ContinuedContinued

Have other members of management other members of management been involved in making this determination?

Would coco‐‐workers perceive workers perceive the decision to terminate fair or unfair?

Is the employee in a category that is protectedprotected under anti‐discrimination laws?

Could the employee claim any type of harassment or discriminationharassment or discrimination?

What is the employee’s length of servicelength of service?

Is this corrective action consistentconsistent with that taken against other employees?



Has the employee been told that termination may result if the conduct or performance continued? (Will it be a surprise?)

Are there other appropriate alternatives to termination, such as transfer, counseling discipline probation suspension or demotion?

A PREA PRE‐‐TERMINATION CHECKTERMINATION CHECK‐‐LIST LIST ‐‐ ContinuedContinued

counseling, discipline, probation, suspension, or demotion?

Are there any health-related or any type of drug or alcohol-related problems?

Are there any known or suspected disabilities or reasonable accommodation issues?

Are there any pending or unresolved Worker’s Compensation issues?

Could the employee perceive the action as retaliation?


Separation AgreementsSeparation AgreementsWhen, Why, HowWhen, Why, How

This Severance and Release Agreement (the “Agreement”) is made and entered into between EMPLOYER NAME (The “Company”, or

AGREEMENT FOR SEVERANCE AND GENERAL AGREEMENT FOR SEVERANCE AND GENERAL RELEASE OF ALL CLAIMSRELEASE OF ALL CLAIMS

“Employer”), and EMPLOYEE NAME (“Employee”) (collectively referred to as the “Parties”).

When to Use

Why to Use

How to Use



When to use:When to use:

•• Classic Situations:Classic Situations:– Long time employee

– To provide a smooth transition when a reduction in force is necessary:necessary:

• Slow down in business

• Seasonal change

• Change of direction in the business

•• More Recently Used:More Recently Used:– To prevent lawsuits


Why to use:Why to use:

• Fear of litigation

• You have separation/severance policy in your p y yHandbook

• It is known that you have executed various agreements of this type for other employees


How?How?

•• MoneyMoney

•• No Money No Money

– If the employer has well documented support for a “for cause” termination money may not need to be paid money in a separation agreement when in exchange for termination a voluntary resignation is invited. A non‐opposition to an employee’s application for unemployment benefits can be valuable enough consideration in this situation to make the separation agreement enforceable.



Why and How to use:Why and How to use:

•• Why?Why?

– In your handbook a policy or, you did it for others

•• How?How?

–– No MoneyNo Money• A non‐opposition to apply for unemployment if grounds for a “for cause” termination

• I.e.: Stealing, Multiple violation of company policies with documented write ups.

–– With With MoneyMoney© 2015 TPO The HR Experts - The Saqui Law Group All Rights Reserved

The Termination ProcessThe Termination ProcessThe HowThe How‐‐To’s ChecklistTo’s ChecklistIf, after investigating the circumstance surrounding the situation, the decision is made by upper management to terminate the employment relationship, the following procedures are recommended:

Coordinate Coordinate with accounting with accounting to produce the final paycheck and COBRA notification documents as appropriate.

Schedule a meetingSchedule a meeting with the employee Arrange for a witnessArrange for a witness to be present Schedule a meeting Schedule a meeting with the employee. Arrange for a witness Arrange for a witness to be present during the meeting. It should be a position higher than the departing employee.

Inform the employee:

““TheThe decision has been made to terminate your decision has been made to terminate your employment effective immediately employment effective immediately

for for the following reasons . . the following reasons . . .”.”

TREAT EMPLOYEES WITH DIGNITY & RESPECT!© 2015 TPO The HR Experts - The Saqui Law Group All Rights Reserved

The Termination ProcessThe Termination ProcessThe HowThe How‐‐To’s Checklist To’s Checklist (cont.)(cont.)

Make sure not to say Make sure not to say “I”“I” or use the specific names of management. The idea is to try to keep the separation as impersonal as possible and convey the “company’s” decision the “company’s” decision to terminate the employment.

Avoid engaging in lengthy discussions about the reason(s) and reinforce to them that the decision has been made and it is not negotiablenot negotiablethem that the decision has been made and it is not negotiablenot negotiable..

Provide the “Change in Employment Status” notification, and “Unemployment, For Your Benefit” pamphlet.

Ask them to fill out and sign the top portion of the “Exit Interview”.“Exit Interview”.

If the circumstances are appropriate, also ask them to complete the Exit Interview QuestionnaireQuestionnaire portion.



The Termination ProcessThe Termination ProcessThe HowThe How‐‐To’s Checklist To’s Checklist (cont.)(cont.)

Ask for any company propertycompany property, , keys, manual, tools, etc.

Remain in their presence Remain in their presence while they clean out their desk, locker and escort them off company property.

This should be done after hours, during lunchtime or as inconspicuously as This should be done after hours, during lunchtime or as inconspicuously as possible to minimize embarrassment and disruptionminimize embarrassment and disruption..

Do not apologize for the decision or the Do not apologize for the decision or the method of separation!method of separation!


Final Pay RequirementsFinal Pay Requirements

Pay at Separation of Employment Pay at Separation of Employment ((allall positions)positions)

INVOLUNTARY INVOLUNTARY (termination): Immediately!Immediately!

VOLUNTARYVOLUNTARY (resignation)( g )• If employee gives less than 72‐hours notice ‐WITHIN 72 HOURS.

• If employee gives more than 72‐hours notice ‐ ON LAST DAY OF WORK.

Final pay must include all accrued but unused vacation and/or PTO!!


Q & AQ & A



“…Up to and Including “…Up to and Including Termination of Employment”Termination of Employment”

• Please fill out your evaluation forms• For TPO’s Training Calendar, go to: www.tpohr.com

Kimberley Worley, Esq. kimberly

Saqui Law Group, Counselors to Managementwww.laborcounselors.com

Robert P. Russell, SPHR Principal, Lic: PI [email protected]

TPO – The HR Experts www.tpohr.com


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