Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (404) 231-1400
Presented by:Clarence Belnavis
Phone: (503) 205-8045Email: [email protected]
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work®
Performance Management-Effective Communication
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© 2010 Fisher & Phillips LLP
OCHIN Learning Forum, November 15-16, 2012
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
• Employment at-will• Statutory & common law exceptions• Juries view work-related cases differently
REFRESHER
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
• Screen for the “right” employee• Employee handbook• Orientation• Introductory period
IMPORTANT FOUNDATIONS
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
PURPOSE OF EVALUATIONS
• Provide an opportunity to observe performance• Express observations objectively• Evaluate employee potential• Identify need for training/guidance• Advise employee of strengths and weaknesses
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
BENEFITS OF EVALUATIONSTO EMPLOYER
• Assure consistent treatment of employees• Inventory employees’ skills and abilities• Provide objective support for discipline• Improve performance and efficiency
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
BENEFITS OF EVALUATIONS TO EMPLOYEES
• Satisfy need to know• Constructively raise awareness of
weaknesses• Prevent unrealistic self-evaluations and
expectations for the future• Provide for upward feedback
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
PITFALLS IN EVALUATING EMPLOYEES
• The “halo” effect• Letting one incident affect the whole evaluation• Being influenced by prior evaluations• Evaluation without a proper standard• Failure to cite critical incidents• Not allowing enough time
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
PLANNING THE EVALUATION INTERVIEW
• Have the employee do a self-evaluation• Outline the major points• Anticipate the employee’s reaction• Be prepared to support your evaluation• Be clear about what you want the
employee to do• Have a plan in mind for helping the
employee improve
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
GOAL
The employer’s primary goal
is to rehabilitate poor performers.
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
DISCIPLINARY WARNINGS
• Be objective.• Don’t hesitate to give them when warranted.• Check facts before putting them in writing.• Tell employee what will happen if the incident
happens again or if no improvement occurs, i.e., immediate discharge.
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
DOCUMENTING DISCIPLINE
• Every warning should end with:
“Repetition of this conduct, failure to follow any of our normal work rules or rules of conduct or to meet our standards of performance will result in further disciplinary action, up to and including immediate termination of your employment.”
• “Sustained and immediate improvement.”
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
You write to an employee: “You have a bad attitude and
are insubordinate.”
Can you document this problem better?
How?
SCENARIO
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
An employee’s work is not neat.You write him a memo that “your
work is sloppy.”
Can you document this problem better?
How?
Should you require the employee to sign the memo?
SCENARIO
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
An employee has attendance problems.
You write her a memo saying that “you’re habitually late and have poor
attendance.”
Can you document this problem better?How?What if the employee refuses to sign the disciplinary memo?
SCENARIO
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
An employee has problems dealing with your customers.
You write a memo saying “you’re getting too many
complaints from customers.”
Can you document this problem better?
How?
SCENARIO
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
You suspect an employee violated the drug & alcohol policy. You ask the employee to take a drug test. Before you can make arrangements to get him to the lab, he leaves work. A few hours later his wife calls and says he checked into rehab.
Can you discharge this employee?
For what? When? How?
SCENARIO
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
A white male employee under 40 is called for military service. You grant him a military leave. Ninety days later he returns. Four months later you suspect him of theft.
Does the employer have any special obligation to him or can you just fire him?
SCENARIO
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
• Discharge is necessary• Key elements should be present
BASIC PRINCIPLES
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
DISCHARGE IS NECESSARY
• Improves or maintains productivity by removing poor performers
• Gives employees a clear direction as to employer expectations
• Avoids morale problems due to failure to deal with poor performers
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
KEY ELEMENTS
• Consistent• Timely• Impartial• Progressive• Appropriate
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
TYPES OF DISCHARGE
• Rule violations
• Performance problem
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
RULE VIOLATIONS
HarassmentInjuries & AccidentsLeaving Early Misuse of PropertyPoor PerformanceSleeping or InattentionSolicitation or DistributionSubstance AbuseTardinessTheftUnlawful ActivityUnsafe Work Practices
Absenteeism Breach of ConfidenceCompany PremisesConflict of InterestDamage to PropertyDiscourtesy or DisrespectFighting or ThreatsWeaponsFraud or DishonestyGamblingGifts or GratuitiesSecurity violations
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
RULE VIOLATIONS
• Rule?• Notice of the rule?• Uniform enforcement of the rule?• Proper documentation available?• Surprise to employee?• Terminate with dignity.
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
• Performance standard?• Notice of the standard?• Uniform enforcement of the standard?• Proper documentation available?• Surprise to employee?• Terminate with dignity.
POOR PERFORMANCE
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
THE “CLEAN” RULE
Consider the facts
Learn the employee’s, manager’s and witnesses’ stories
Evaluate prior discipline for similar offenses
Analyze risk
Narrow potential options and decide
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
THE “NEAT” RULE
Notice
Explanation
Assistance
Time to Improve
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
3 P’S OF DISCIPLINE
• People• Procedures• Paperwork
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
PEOPLE
Who should communicate the decision?
Does that person have: • Skills and personal qualities to effectively
communicate decision?• Knowledge of the facts?
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
PEOPLE
Did the person communicating the decision hire or promote the employee?
Is that person in the same protected class as the employee?
Who else should witness discharge? What role should HR play? Should legal counsel be involved?
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
PROCEDURESPreliminary Review
Require advance approval Consider potential legal challenges Review documentation available Recognize oral testimony after the fact is
never as convincing as documentation Consider the employee’s story Suspend and review
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
Fully investigate before acting Review past discipline for comparators Was progressive discipline used? Review past discipline for impact on
protected classes Identify a precipitating event Avoid delay
PROCEDURESPreliminary Review
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
PROCEDURESPlan the Discharge Meeting
Prepare brief, truthful explanation Arrange for retrieval of employer property Arrange for removal of belongings Secure the electronic systems Consider security issues
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
PROCEDURESPlan the Discharge Meeting
Where? When? Anticipate predictable questions Prepare brief, truthful responses Review separation benefits Prepare an outline
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
PROCEDURESThe Discharge Meeting
Introductory remarks Convey the decision Plan for exit
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
PROCEDURESThe Discharge Meeting
Avoid blaming or accusing the employee Anticipate surprise or resentment Give the employee dignity
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
PROCEDURESCommunicating with Other Employees
• Focus on forward transition of duties
• Be truthful, but limit what you say
• Avoid defamation
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
PAPERWORK
• Review existing paperwork• Supplement with additional paperwork• Consider effect of “other” paperwork
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
BE CAREFUL AFTER EMPLOYMENT ENDS
• Exit interviews• Reference checks• Unemployment claims• Other legal claims
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (503) 242-4262
Clarence BelnavisFisher & Phillips, LLP
111 SW Fifth Avenue, Suite 1250Portland, Oregon 97204
Direct: [email protected]
FINAL QUESTIONS