DISSECTING DISCIPLINE

1. DISSECTING DISCIPLINE ERIN E. MAGEE JACKSON KELLY PLLC DEEM HR ANNUAL WEST VIRGINIA HUMAN RESOURCES CONFERENCE JUNE 9, 2010

2. THE “MYTH” OF AT-WILL EMPLOYMENT Employment is presumed to be “at-will” unless the employer and employees are parties to a collective bargaining agreement or contract of employment. • The employer or the employee may terminate the employment relationship for any lawful reason without notice or cause. • The doctrine does not give an employer carte blanche to discharge an employee.

3. FAIRNESS IS THE KEY • “At will” becomes something more when you are defending a lawsuit. • Bottom line: you need a reason to discipline or discharge an employee. • At the end of the day, a jury or judge will look at an employment decision and ask, “was it fair?”

4. WHY DO WE CARE? • When a court instructs a jury in a discrimination or wrongful discharge case, the judge will tell the jury that it must decide whether the employer took disciplinary action for an unlawful reason, e.g., age, gender, filing a workers’ compensation claim. • The employer will always provide a nondiscriminatory reason for the disciplinary action, such as failing a pre-employment physical, chronic absenteeism, poor work performance or insubordination.

5. DOING IT RIGHT • Documentation helps the employer prove that its reason for the disciplinary action was the real reason and not an unlawful reason. • However, without supporting documentation, the real reason can look like something else, like discrimination or retaliation (the jury may ask--if the plaintiff’s performance was so bad, why didn’t you document it and discipline him?).

6. SOME DOS AND DON’TS • Don’t overstate performance. Ever. • Do be objective, and don’t include your personal opinion or subjective remarks. • Do be honest and don’t sugar coat problems. • Do make the consequences of non-compliance clear.

7. SOME MORE DO’S AND DON’TS • Don’t make comments that identify a protected classification (like sex stereotyping) e.g., don’t tell a female employee to act more feminine, be less aggressive, wear makeup and high heels. • Do give the employee a place to comment or disagree with the action. • Give the employee a place to set goals (and go back to them the next year).

8. AND A COUPLE MORE • Don’t use legal terms • “You appear to have violated a safety policy” is better than “you violated state safety law.” • “Our investigation suggests that your conduct was harassing” is better than “you created a hostile work environment.”

9. STILL GOING • Don’t document idle gossip--if a serious issue arises, investigate it or, if you’re not comfortable or need guidance, discuss the issue with another management employee. • Do keep comments related to the job, and don’t make subjective comments. • Do ask someone else in HR or management to review what you have drafted.

10. YEP, THERE’S MORE • Do be aware that emails can be considered counseling if they are corrective in nature. • Don’t overuse email for this purpose to avoid confrontation.

11. GEES, LAWYERS • Don’t think information you document is privileged just because you send it to a company lawyer. • Do ask for in-house counsel’s advice if you want the communication to be privileged.

12. DOCUMENTING EMPLOYEE PERFORMANCE ISSUES • Meet performance issues head on and deal with them as they happen. • The days of being able to “dump” a performance problem during RIF are gone. • Give the employee fair notice of the problem and a chance to fix it.

13. ADDRESSING EMPLOYEE PERFORMANCE ISSUES • Document oral counseling to make a record--just date and sign it. • Develop a form to use for all disciplinary action, from verbal counseling to discharge. And use it for everything – consistency is the key! • Always give the employee a place to comment and disagree on the action.

14. USING PERFORMANCE IMPROVEMENT PLANS • Provide a clear and fair explanation of the employee’s performance issues. • Include goals and realistic actions for the employee to achieve to assess improvement. • Establish a time frame for the employee to meet goals and to re-evaluate performance.

15. AND IF ALL THIS DOESN’T WORK . . . • Some basic points to consider when deciding whether to discharge an employee. • What is the employee’s length of employment? • What do the employee’s past performance appraisals show? • Is there any record of discipline or counseling?

16. ADDITIONAL CONSIDERATIONS • What is the timing, especially as to workers’ compensation, FMLA and other claims? • Is the employee temporarily totally disabled under the Workers’ Compensation Act or seeking reinstatement after such disability? • Is the employee returning from leave under the FMLA? • Are any absences at issue covered under the FMLA or workers’ compensation?

17. ANYTHING ELSE? • Is the investigation complete, including written statements from witnesses? • Was the employee given chance to explain the problem? • Is the proposed action consistent with personnel policies? • Was the employee aware of the rules or standards he is charged with violating?

18. THERE’S MORE? • Does the punishment fit the crime? • Are there mitigating circumstances? • Has the employee been given recent merit increases, awards or promotions? • Is his past record otherwise exemplary? • Is a progressive discipline policy or a collective bargaining provision relevant?

19. PHEW! • Okay, I’ve considered all this, assessed the risks and still think discharge is the right course of action. Now what do I do? • Get ready to document it.

20. BE SPECIFIC • Bad behavior generally manifests itself in specific examples--identify and include them. • Absenteeism generally has a pattern. Outline all absences—including those covered by paid leave or law in contrast to those not covered and unexcused. • Poor performance almost always can be documented chronologically—go through all the steps.

21. WHO? • Who was involved in the action? • Who witnessed the unacceptable action, performance problems? • Who did you interview and what did each person say?

22. WHO? • From whom do I need to get a written statement? • Who was involved in the decision to terminate the employee’s employment and what was the role of each person?

23. WHAT? • What did the employee do (or not do)? • What policy, practice, rule (but not necessarily law) did the employee violate? • What did you do to investigate the problem? • What did you do to address the issue?

24. WHAT? • What happened to the last employee who did (or didn’t do) the same thing? • What else do I need to know that I don’t know already? • Don’t be afraid to go back and get more information if you think it might be important (or even if you think it might not be important).

25. WHY? • Why did the employee do (or not do) what he did (or didn’t do)—what is his explanation? • Why do you not buy his story? • Why do you believe others over the employee? • If you are taking different action than the past, why are you doing it this way now?

26. WHERE? • Where did all this happen? • Where is all this going? • How did we get where we are?

27. WHEN? • When did significant actions take place? • Include specific dates and times. • Remember, an employee has one year to file a WVHRC charge and two years to file a lawsuit. • Document everything immediately.

28. HOW? • How did the employee violate policy, practice or rules? • How did the employee fail to address his performance issue? • How was the employee evaluated? • How many paid leave days does the employee have left?

29. WHY NOW? • Why did you decide to terminate the employee now? What triggered the decision to discharge the employee? • How long have you tolerated the behavior, performance issues or the like? • What is the difference this time?

30. THE BIG PICTURE • Make sure that you understand all the factual circumstances leading up to the decision and all the issues surrounding the decision. • Always put everything in context. • Don’t forget all the other do’s and don’ts applicable to evaluation, performance and discipline.

31. THE END QUESTIONS? CONCERNS? COMMENTS? THANKS!