dealing with the problem employee john ashby [email protected] 208.388.4844
TRANSCRIPT
PHILOSOPHY
• Every employee deserves (1) to known the employer’s expectations; (2) a specific explanation of how he/she is not meeting the expectations; and (3) an opportunity to fix the problem with support from the employer.
• When it is clear that the employee cannot or will not meet the company’s expectations, take action promptly.
AT-WILL EMPLOYMENT
• Employment may be terminated for any reason, or no reason at all, but not for an unlawful reason
LEGAL V. ILLEGAL REASONS FOR TERMINATION
• Exceptions to at-will rule– Limitations Imposed by Contract/Handbook– Limitations Imposed by Anti-Discrimination Statutes– Limitations Imposed by Public Policy
• Jury duty• Workers Compensation
LAWS PROHIBITING DISCRIMINATION
• Title VII: Prohibits discrimination based on an employee’s “race, color, religion, sex, or national origin.”
• Americans with Disabilities Act: Prohibits discrimination based on disability
• Age Discrimination in Employment Act: Prohibits discrimination based on age (40 years old)
• Idaho Human Rights Act: Idaho law protecting race, color, religion, sex, national origin, disability, age
LAWS PROHIBITING DISCRIMINATION
• Pregnancy Discrimination Act: Prohibits discrimination based on pregnancy.
• Occupational Safety and Health Act: Prohibits retaliation for reporting concerns.
• Family and Medical Leave Act: Prohibits retaliation for exercising FMLA rights.
• Uniformed Services Employment and Reemployment Rights Act (USERRA): Prohibits discrimination based on military status
RETALIATION CLAIMS
1. Employee engaged in protected activity (i.e. made a good faith claim of harassment)
2. The employer subjected Plaintiff to an adverse action
3. A causal link exists between the protected activity and the adverse action
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EXAMPLES OF PROTECTED ACTIVITY
• ADA accommodation request• workers’ compensation claim• Safety complaint• Blowing the whistle on an illegal practice• Harassment complaint• Discrimination claim
FORMS OF RETALIATION
Adverse actions include:◦Termination◦Demotion◦Denial of promotion or training opportunities◦Salary/wage reduction◦Office relocation◦Poor assignments
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CAUSAL LINK
• Protected activity must be the “but for” cause of adverse action
– University of Texas v. Nasser (2013)
• Timing alone can be enough if “very close” (i.e. 3 months)
TOOLS FOR DEALING WITH THE PROBLEM EMPLOYEE
• Recruiting and selection process– The employment application– Interviews– Reference Checks
• Evaluations• Disciplinary Process• Termination
EVALUATING EMPLOYEE PERFORMANCE
• At least annual• Uniformity/consistency• Accuracy -- do not inflate evaluations• Criticism should be clear, specific and
unequivocal• End on a positive note• Employee participation
DISCIPLINE / DOCUMENTATION
• Documentation is the key to defending discrimination/retaliation claims
• Use progressive discipline (if appropriate):– Verbal warning– Written warning– Disciplinary action– Termination
• Handbook should not promise progressive discipline
INFORMATION INCLUDED IN DOCUMENTATION
• Factual details• Statement of the
problem• Identify the rule or
policy• Identify prior
warnings
• Identify action taken• Describe
goal/expectation• Warn of future
consequences• Employee
acknowledgement / explanation
TEN STEPS BEFORE TERMINATION
1. Are you able to clearly state the employee’s problem?
2. Is the problem reflected in the employee’s evaluations or other written documentation?
3. Have the proper procedural steps been followed in dealing with the employee?
4. Is the discipline or discharge decision free of bias?
TEN STEPS BEFORE TERMINATION
5. Is the decision free of any circumstances indicating a retaliatory motive by the decision-maker?
6. Is the decision consistent with decisions in similar cases?
7. Has the decision been reviewed by experienced human resources personnel and legal counsel?
TEN STEPS BEFORE TERMINATION
8. Can the discharge or discipline decision be communicated by two managers in an appropriate fashion?
9. Will the employee have the opportunity to tell his or her side of the story?
10. Should you use a severance agreement?
TERMINATION TIPS
• Do not react without sufficient information• Do not delay the inevitable
– Take advantage of probationary period
• Listen to the employee’s explanation• Do not embarrass the employee• Plan a timetable for departure
EXIT INTERVIEW
• Goal is to improve the organization• Let the employee offer suggestions• Take notes, especially if employee raises
concerns of discrimination.• End on a positive note
SEVERANCE AGREEMENT
• Consider severance agreement in high-risk situations
• Employee releases all potential claims against employer
• Include confidentiality agreement• Special consideration for employees over 40
years of age (Older Workers Benefit Protection Act)
