Discipline & Discharge: Necessary Documentation

1. Discipline & Discharge: Necessary Documentation Presented by: Charles W. Cavagnaro, Jr. Evans | Petree, P.C.

2. Something About Mary • 3+ year employee • Barely average performance • Work area not clean and organized • Missing/damaged shipments

3. Something About Mary • No warnings on file • No performance evaluations • No documentation of performance problems • Only “told” her of the problems

4. Something About Mary Mary reports “the incident” • Tells her manager that employee said another co-worker tried to put a noose around his neck • Manager talks to all employees in department but takes no action • Mary given list of things to improve in the warehouse few days later

5. Something About Mary • Employer consolidates warehouse operations 6 weeks after her report • Not considered for a new position • Terminated because of “job elimination”.

6. Something About Mary

7. Something About Mary • Mary sues for retaliation because she reported an incident of racial harassment • Employer says she was terminated because her job was eliminated, plus she wasn’t that good of an employee anyway • Result at trial ……

8. Something About Mary

9. Something About Mary Mary wins: • $60,213.07 in back pay • $42,000 in compensatory damages • $350,000 in punitive damages • $191,162.43 in attorneys’ fees and costs

10. Avoiding the Problem

11. Why is this Important? EEOC Statistics • 91,503 discrimination & harassment claims filed in FY 2016 • $224.5 million in monetary benefits EEOC recovered in FY 2016 – not including litigation • 66% of employees unaware of company harassment and discrimination policies

12. Effective Discipline Why discipline employees? • Reinforce Standards – Makes all employees aware of expectations • Deter Improper Conduct – Change employee’s behavior for the better. • Punishment is not the goal

13. Effective Discipline 4 Golden Rules of Employee Discipline • Rule of Immediacy • Rule of Consistency • Rule of Impersonality • Rule of Positivism

14. Effective Discipline Rule of Immediacy • Discipline as soon as possible • Cause and effect • Eliminates possibility of insulation • Discipline delayed is discipline lost

15. Effective Discipline Rule of Consistency • Prevents claims of discrimination • “Fair vs. Equal” • Justify departures and inform employee • Address all rule violations • Inform appropriate management

16. Effective Discipline Rule of Impersonality • Discipline associated with violation not supervisor – “It’s not personal” • Be friendly, not a friend • Do not play favorites • Praise in public/Criticize in private

17. Effective Discipline Rule of Positivism • Not time to beat up on employee • “You can do it” attitude • Listen to employees • Follow up with employee

18. Effective Discipline Power of Documentation • People lie, memories fade • Document non-serious violations • Document investigations • Document employee complaints • Always send to appropriate management

19. Effective Discipline Disciplinary Interviews • Get a game plan • Inform appropriate management • Make sure manager is objective • Should be done as soon as possible • Interview employee at issue 1st or 2nd • Always have witness in interviews

20. Effective Discipline Disciplinary Interviews • Ask specific questions • 5 Ws - Who? What? When? Where? Witnesses? • Don’t just “Get a Statement” • Follow up on responses • Separate fact from rumor

21. Effective Discipline Disciplinary Interviews • Use documents to support questions • Ask that employee keep confidential but recognize you cannot • Take notes - have witness verify • Recognize silence and avoidance • Ask if witness has any other relevant info

22. Effective Discipline Preparing Documentation • Describe circumstances • Identify rules violated or standards not met • List prior discussions or incidents • Describe employee explanation

23. Effective Discipline Preparing Documentation • Agreement for future compliance or improvement • Consequences for non-compliance • Signature of manager and employee • Placed in appropriate file

24. Effective Discipline Motivational Discipline • Remain positive during process • Anger and punishment rarely work • Employee takes responsibility • Prior decisions • Future performance – “You can do it” • Follow up after discipline

25. Make Terminations “Stick” • Do not be afraid to pull the trigger and terminate a problem employee. • No good deed goes unpunished • Leopards don’t change their spots • Discipline delayed is discipline lost • “Should have fired him when he …”

26. Make Terminations “Stick” • Was employee warned of consequences? • Specific rule employee has violated? • Was employee aware of the rule? • Investigation complete? • Fair and objective? • Documented? • Investigation support charges? • Notified appropriate management?

27. Make Terminations “Stick” • Have others done same thing and not been terminated? • Does “the punishment fit the crime”? • Is termination the most appropriate discipline? • Progressive discipline • First offense termination

28. Make Terminations “Stick” Before making decision final, ask yourself: • Am I proud of this decision? • Would I be embarrassed to explain this to a judge or jury?

29. Make Terminations “Stick” Executing the Decision • Call meeting at end of day • Inform employee of termination • Short and sweet • No debating • Have paperwork ready and allow time to get personal items

30. Avoiding Liability • Loose lips sink ships • Avoid stereotypical comments • Avoid conversations about protected classes • Only discuss personnel matters with appropriate management • Don’t call termination a “layoff” • Always get employee’s side of story

31. Avoiding Liability • Document, Document, Document • Address the bad attitude • Get independent verification • Give specific examples of problem • Select right reason for discharge • Call it what it is • Don’t throw in kitchen sink

32. Questions