Documentation, Discipline and Discharge

Documentation, Discipline and Discharge Andrea Shindlebower Main Kentucky League of Cities February 2014

Discharge of Employee - Important to Note It is important to note that any time you are going to terminate an employee that you contact your city attorney. In addition, if you have KLC insurance you can have your city attorney contact us and in some circumstances we can provide defense counsel at little or no cost to walk them through the process. This might not prevent a lawsuit, but it makes any litigation that may occur because of the termination easier to defend.

Documentation, Discipline and Discharge • At-Will Employee • What does is mean? • What are the limitations? • Prevention • Proactive strategies to help prevent the need for discipline and discharge • Documentation • Who, What, Where, When, How & Why • Discharge Process • Before, During and After

Employment At Will – What does it mean? • Employment at Will • Employer can terminate "for good cause, for no cause, or for a cause that some might view as morally indefensible." • Real Reasons Given for Terminations*: • Wearing Orange to Work • Being too attractive • Wearing Green Bay Packers Tie *Disclaimer we do not recommend using these reasons

Employment At Will- Limitations • Employment at Will is Limited • Federal, state and local laws can limit at-will terminations • Federal Laws: • Title VII of the Civil Rights Act • Protects against discrimination based on: • Race • Gender • National origin • Color • Religion • Age (over 40) • Disability • Military Status

Employment At Will- Limitations • Employment at Will is Limited (cont.) • Prohibits discrimination in all employment practices against individuals in protected classes. • Does not just apply to termination • Recruiting, Selection, and Hiring • Training • Classification, Assignment and Transfer • Compensation, including fringe benefits • Work Environment • Promotion and demotion • Discipline • Any other aspect of employment constituting a term or condition.

Employment At Will – Limitations • Employment at Will is Limited (cont.) • State Law: • Kentucky Civil Rights Act – KRS 344 • Same protections as the Federal Law • Protects against discrimination based on race, gender, national origin, color, religion, age (over 40) and disability. • Adds protected class: status as a smoker or non-smoker

Specific Federal and State Law – Limitations • Age Discrimination in Employment Act • Age Discrimination (ADEA) • Over the age of 40 • How to handle termination of person over the age of 40: • Under the ADEA, there has to be a valid reason -- not related to age -- for all employment decisions. • Examples of valid reasons would be poor job performance by the employee or an employer's economic trouble. • In the case of layoffs, a company cannot use age as the basis for determining who is laid off and who is kept on. If most people who are laid off are 40 or older, and the majority of workers kept on are younger, there may be a basis for an ADEA complaint or lawsuit, especially if the employer has hired younger workers to take the places of workers over 40.

Specific Federal and State Law – Limitations • Age Discrimination (ADEA) (cont.) • Lay off • If an employer offers a severance package to an employee who is over age 40, and the employee is asked to sign a release, specific requirements must be met in order to comply with the Older Worker's Benefit Protection Act (OWBPA), in order for the employee's waiver of rights to be valid. • Among other requirements, the release must include a 21-day review period as well as a seven-day revocation period; • the language of the release must be understandable to the average protected employee; • and the employee must be advised in writing that she has the right to consult an attorney prior to signing the release.

Specific Federal and State Law – Limitations • Pregnancy Discrimination Act • Pregnancy discrimination is defined as discrimination on the basis of pregnancy, childbirth, and related conditions. • Pregnant employees must be permitted to work as long as they are able to perform their jobs. • If a pregnant employee is unable to perform certain aspects of their job, such as heavy lifting or working with toxic chemicals, the employer must accommodate to the same extent it accommodates other temporarily disabled employees, such as providing “light duty,” shifting certain job duties to other employees, or permitting transfer to a vacant position.

Specific Federal and State Law – Limitations • Pregnancy Discrimination Act (cont.) • Cannot terminate an employee based on the fact that they cannot perform a job due to the pregnancy • If no accommodation available they would be entitled to leave based on your personnel policies OR past practice • FMLA – 50 or more employees • PTO • Unpaid leave • Employer cannot move pregnant employee to another position because of the employers safety concerns. • Employee can voluntarily request to be moved • Employer would accommodate as they would any other employee with a temporary disability

Specific Federal and State Law – Limitations • ADA (Americans with Disabilities Act) • Protects employees with a disability that are qualified to do a job with or without a reasonable accommodation • Under the ADA, an employee has a disability if they have a physical or mental impairment that substantially limits a major life activity • Major life activities include but are not limited to: • Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. • A major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

Specific Federal and State Law – Limitations • ADA (Americans with Disabilities Act) • The ADA also protects employees that have a history of a disability • Or if an employer believes that an employee has a disability • An individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to discrimination because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.

Specific Federal and State Law – Limitations • ADA (Americans with Disabilities Act cont.) • Cannot termination a person with a disability because they can no longer perform a job • Reasonable Accommodations • A reasonable accommodation is a modification or adjustment to a job, the work environment, or the way things usually are done that enables a qualified individual with a disability to enjoy an equal employment opportunity, unless to do so would cause undue hardship. • Examples of reasonable accommodations include: • Making existing facilities accessible; • Job restructuring; • Part-time or modified work schedules; • Acquiring or modifying equipment; or • Reassignment to a vacant position.

Specific Federal and State Law – Limitations • ADA (Americans with Disabilities Act cont.) • Reasonable Accommodations – Undue Hardship • The only statutory limitation on an employer's obligation to provide "reasonable accommodation" is that no such change or modification is required if it would cause "undue hardship" to the employer. • "Undue hardship" means significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation. • Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business. • An employer must assess on a case-by-case basis whether a particular reasonable accommodation would cause undue hardship.

Specific Federal and State Law – Limitations • Are these requests for reasonable accommodations under the ADA? • Example A: An employee with a hearing disability must be able to contact the public by telephone. The employee proposes that he use a TTY to call a relay service operator who can then place the telephone call and relay the conversation between the parties. • Example B: A clerk easily becomes fatigued because of lupus and, as a result, has difficulty making it through her shift. The employee requests a stool because sitting greatly reduces the fatigue. • Example C: An employee tells his supervisor that he would like a new chair because his present one is uncomfortable.

Specific Federal and State Law – Limitations • USERRA • Cannot terminate based on the fact that the employee is in, or has been in, the military service • Prohibits discrimination against individuals who enter the military, reserves, National Guard, Coast Guard, or other military services. • Requires reemployment of individuals with no loss of pay, seniority, or other benefits.

Specific Federal and State Law – Limitations • USERRA - FYI • Requires reemployment of individuals with no loss of pay, seniority, or other benefits. • Five conditions of reemployment • Must have a civilian job • Must provide written or verbal notice prior to leaving • Must not exceed the 5 cumulative years of service • Exceptions to the 5 year rule: • Unable to obtain release from service • Required drills and annual training and other training duty certified by the military • Service performed during national emergency or time of war – includes voluntary and involuntary service • Must be released from service under conditions other than dishonorable • Must report back to the civilian job in a timely manner or submit a timely application for reemployment.

Employment At Will – Limitations • Employment at Will is Limited (cont.) • Local Laws • Fairness ordinances • Sexual Orientation and Marital Status • Morehead, Vicco, Covington, Lexington, Louisville • Local ordinance limiting action to “for cause” or “good cause.” • Implies a fair and honest reason for terminating an employee • Mayor / Council form – Mayor still has ultimate authority to remove

Employment At Will – Limitations • City Specific Issues by State Law • Police and Fire (KRS 95 and KRS 15) • Hearing process • Non-elected officers (KRS 83A.080) • Written Reason for Dismissal • City Managers (KRS 83A.150) • Hearing process • Urban County Governments (KRS 67A.280) • Hearing process • Civil Service System (KRS 90) • Hearing process

Employment At Will – Limitations • City Policies – Be careful about using the term “Probationary” • Legal trend is to advise against the inclusion of such language in employee manuals for normal employees. • Generally included only if there is some period must be satisfied prior to gaining some type of benefit. • Must be an employee of the city for 90 days before eligible for health insurance • Less popular because the implies the once period has ended, the employee becomes tenured, has some greater contractual right, or modifies at-will standard to “just cause” only terminations. • If included, other terms such as “introductory period,” “orientation period,” or “trial period” should be used. • Disclaimer should be included if the term probationary is referenced anywhere in the handbook and a separate acknowledgement should be signed by any new employee.

Employment At Will – Limitations • However using a term such as “trial period” … • For city police and fire, can be considered a good practice • Do not have to follow police officer bill of rights or hearing procedures during this period! • See Rottinghausv. Board of Commissioners, 603 S.W. 2d 487 (1979) where the court said the “probationary provisions did not constitute a disciplinary regulation, but rather a legislative directive setting up a process for evaluation of a potential member of the police department.” OAG 82-577

Employment At Will – Limitations Questions about employment at will or the limitations?

An Ounce of Prevention – Proactive instead of Reactive • How do you become proactive instead of reactive? • Treat all employees with: • Dignity • Respect • Courtesy • Fairness

An Ounce of Prevention – Proactive instead of Reactive • Poor employee relations can result in the need for disciplinary measures as they can cause: • Absenteeism • Poor Performance • Low Morale • Turnover • Litigation

An Ounce of Prevention – Proactive instead of Reactive • What else can you do that is proactive? • Determine major job duties • Clear job descriptions • Make sure they are current – update frequently • Define Performance Standards • To use as a benchmark in measuring actual performance. • Make sure employee performance standards are expressed in terms of quality, quantity, timeliness or cost savings. • Communicate performance & behavior expectations • Provide an orientation or on boarding program for new employees • Review job descriptions and performance standards with employees • Have written policies and procedures regarding rules – and review them with employees

An Ounce of Prevention – Proactive instead of Reactive • What else can you do that is proactive? (cont.) • Establish a climate of communication • Open door policy • Provide ongoing coaching and feedback • How well are they doing? • What can they do to improve? • Document job performance • The good and the bad • Evaluate job performance • Annually – bi annually – follow policy • Provide effective training & resources

An Ounce of Prevention – Proactive instead of Reactive Questions or comments about being proactive?

Progressive Discipline -Principles • Four Principles Surrounding Effective Discipline • Corrective • Fair • Consistent • Progressive

Progressive Discipline -Definition • Progressive Discipline – What is it? • A system of increasingly severe penalties for each time an employee is disciplined for any of the following during an active period (usually 12 months): • Same situation • Similar situation • Serious situation • Series of situations - bundling

Progressive Discipline -Goals • Goals of Progressive Discipline • Correct undesirable conduct, rather than to simply punish; • Communicate problem issues directly and in a timely fashion; • Include employees in the problem solving process;

Progressive Discipline -Goals • Goals of Progressive Discipline (cont.) • Provide proof that you made an effort to rehabilitate the employee before the ultimate decision to terminate; and • Demonstrate that there was no other alternative but to terminate the employee because they refused to accept the “invitation” to improve their conduct or performance

Progressive Discipline -Steps • Progressive Discipline Steps • Coaching / Review Expectations • Verbal Reprimand • Written Reprimand • Suspension • Termination • What is set out in your city policies!

Progressive Discipline -Steps • Step 1 – Coaching • What is the goal of coaching? • Reestablish Expectations • Resolve the problem before it progresses any further • Address minor infractions before they come major infractions • Establish two way communications • Clearly identify the substandard performance or behavior

Progressive Discipline -Steps • Step 2- Verbal Reprimand • What is the Goal? • Informal communication to the employee about an issue • Discussions need to include: • Specific incident • Time and place of the incident • Effects of the incident • Set expectations • Possible consequences • Follow the verbal reprimand with a confirming memo

Progressive Discipline -Steps • Step 3 – Written Reprimand • What is the goal? • Last chance agreement • Lets the employee know that a breach of a final written warning could or will result in discharge • A final warning offers few alternatives • Specifics on documenting written reprimands is addressed in the next section

Progressive Discipline -Steps • Step 4- Suspension • Goal of suspension? • Used to investigate the facts • Provides “breathing space” to deal with what appears to be serious misconduct • Allows time for consultation with higher levels of authority who are not readily available • Never terminate on the spot even if employee has seemingly made a dischargeable offense, instead investigate • Collect evidence from both sides of the story and get the board of commissioners and the city attorney involved • Investigate within 48-72 hours of the incident

Progressive Discipline -Steps • Step 4- Suspension (cont.) • Review past practice. • Make sure that other employees have been treated in the same way in other similar circumstances • Suspension is the last means of corrective action prior to termination • Normal length of suspension should not exceed 3 working days • However, there may be times where longer or shorter suspensions will occur • Read your policy regarding pay during suspension • If unpaid and employee found to be “innocent” they need to receive “back pay” for the time they were suspended without pay.

Progressive Discipline -Steps • Step 4- Suspension (cont.) • Basics of Suspension Letter • A suspension letter should include: • Review of past disciplinary action, if any • Policy regarding suspension • Specific reason for suspension • Expected behavior or performance • That suspension is their last warning • Further violation may result in discharge • The length of suspension • The date and time employee is to resume work

Progressive Discipline -Questions? Questions about progressive discipline?

Documentation – What Actions Call for Documentation? • Documentation • What employment actions call for documentation? • Mid-year and or annual performance reviews • Violation of city policy, procedure, practice, or code of ethics • Attendance issues • Poor performance • Demotions • Promotions • Change in job duties • Training needs and accomplishments • Merit increase decisions based on performance

Documentation DetailsWhen to begin? • Documentation • When should you begin formal documentation? • Assess each instance on a case by case basis, but be consistent • Depends on the severity of the behavior, frequency, prior coaching or counseling, and employees intent • For example an employee is late one time … • For example if an employee punches a coworker …

Documentation – Goals • Documentation • What is the goal of documentation? • To create a record of employment history • Why is documentation so important? • It establishes a record of employment actions taken and the reasons for the actions • Memories fail • If promotion or termination occurs you need something to back it up! • Informs employees of what is expected of them and the consequences if they don’t meet expectations • Employees should never be surprised when they are in a termination meeting

Documentation – Importance • Documentation • Why is documentation so Important? (cont) • From a performance management standpoint, it serves as a written record to guide both the employer and the employees future behavior. • Gives the employee an opportunity to improve • Or advises the employee that they are on the right path • It serves as evidence for actions taken, in the event the employee takes formal or informal steps with a claim against the city • It assures fair and equitable treatment to all employees

Documentation – What if there is no documentation? • Documentation • What are implications of not documenting? • Performance or behavior doesn’t improve • Negative impacts on the city, as well as employee morale, and eventually the managers own performance • Increased frustration • Managers / Department Heads • Co-workers

Documentation – What if there is no documentation? • Documentation • What are the implications of not documenting? (cont.) • Misunderstanding on the interpretation of discussion between the employee and the employer • Employees may not be treated equally • May end up with a discrimination claim • May end up with a wrongful termination claim • If claim is filed against the city there will be a lack of documented formal evidence for defense of legal claims

DocumentationWho is Responsible? • Documentation • What documentation is supervisor/manager responsibility? • Handwritten or typed notes from coaching or counseling sessions with employees. • Written comments including specific examples in performance reviews • Disciplinary actions • Warning documents with specific examples and consequences • Business reasons for employment actions • Demotions • Promotions • Layoffs

When to Consult? • When to consult with city attorney (cont.) • Demotions • Promotions • Work/life balancing matters • Telecommuting • Flex schedule • Harassment claims • Final written warning • Egregious code of ethics or personnel policy violations • Layoffs • Terminations

When to Consult? • When to consult with city attorney • Request of an accommodation – religious and medical • What are the essential functions of the job? • Job description • Before terminating employee that is on FMLA or Workers’ Comp • Could it be considered retaliation for FMLA request or for being on workers’ comp? • Significant changes to job duties • Job description

Documentation – When? • Documentation • Make sure that you discipline as close to the time of the infraction as possible but not in the heat of the moment

Documentation, Discipline and Discharge