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www.FandPnet.com. Baltimore Easton Hagerstown Herndon Tampa Wilmington. Breaking Up is Hard to Do: Disciplining Your Problem Employees Albert B. Randall, Jr., Esq. Quality Representation, Personal Service. Handbooks. Drafting – HR Manager or Atty.? Cost-benefit analysis

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www fandpnet com
www.FandPnet.com

Baltimore

Easton

Hagerstown

Herndon

Tampa

Wilmington

Breaking Up is Hard to Do:Disciplining Your Problem Employees

Albert B. Randall, Jr., Esq.

Quality Representation, Personal Service

handbooks
Handbooks
  • Drafting – HR Manager or Atty.?
    • Cost-benefit analysis
    • HR Manager should draft policy
    • Atty. should review for legal compliance
    • Pre-written policies (one size does NOT fit all)
  • Plain language approach – NO LEGALESE!!

Quality Representation, Personal Service

at will employment
At-will Employment
  • Maryland standard
  • May terminate employee for any reason
    • Non-contract employees
    • Termination may not violate public policy (Adler)
  • Employers should have at-will disclaimer
    • Handbook or
    • Stand alone policy

Quality Representation, Personal Service

at will disclaimers
At-Will Disclaimers
  • Handbook may be found to be employment contract w/o disclaimer (may form implied contract)
  • Cover page in handbook
  • Large, bold typeface, conspicuous
  • Acknowledgement of receipt by employee
  • Sample language:
    • “This handbook contains the complete agreement between the company and its employees. Nothing in this handbook should be interpreted as a contract of employment. Either the company or you may terminate the employment relationship at any time and for any reason.”

Quality Representation, Personal Service

drafting policies
Drafting Policies
  • Generally, employers are free to draft any personnel policy relevant to its business/workforce
  • No-no’s
    • Those prohibited by statute or case law
    • Those that conflict with a contract (CBA or NLRA)
    • Those that jeopardize health or safety of workforce
    • Those that conflict with public policy
  • Yes-yes’s
    • EEO policy
    • FMLA policy

Quality Representation, Personal Service

drafting policies cont
Drafting Policies (cont.)
  • Overly broad
    • Sweeping statements in an effort to regulate as much as possible
    • Language is often vague
    • Often contain unenforceable provisions
  • Overly narrow
    • Extreme regulation of employee conduct
    • Impossible to cover everything
    • May have negative psychological impact

Quality Representation, Personal Service

drafting policies cont1
Drafting Policies (cont.)
  • Better to draft “happy medium” policies
  • Ensure that policies are legally enforceable
  • Equally importantly, ensure that the policies are practically and uniformly enforced
    • Need to allow discretion
  • Ensure that front-line managers and supervisors are trained on policies and are held accountable for their implementation

Quality Representation, Personal Service

policies to consider
Policies to Consider
  • FMLA (required)
  • EEO (required)
  • At-will disclaimer
  • Employee privacy/emails
  • Leave (sick, vacation, personal, military, jury, bereavement)
  • Disciplinary
  • Workplace violence
  • Substance abuse

Quality Representation, Personal Service

policies to consider1
Policies to Consider
  • No-solicitation
  • OSHA/safety policies
  • Employee codes of conduct/dress
  • Benefits (COBRA, etc.)
  • Off-duty/moonlighting
  • Arbitration of employment disputes
    • Jury Trial Waivers/Venue Provisions

Quality Representation, Personal Service

hiring practices
Hiring Practices
  • No unintended promises
    • Recruiting
    • Employment applications
    • Offer letters
  • No discriminatory questions
    • Disability, gender, national origin, religion
  • Up-to-date Job descriptions

Quality Representation, Personal Service

discipline
Discipline
  • Three types:
    • Zero tolerance
    • Progressive
    • Hidden/reactionary

Quality Representation, Personal Service

progressive discipline
Progressive Discipline
  • Publish the policy
    • Informs employee of expectations
  • Draft policy so that it does not contractually bind employer
    • Be wary of “shalls”, “wills”, “musts”
    • Permit discretion
    • Remind of “at-will” employment in discipline policy
  • Be intentionally vague in terms of discipline for various offenses

Quality Representation, Personal Service

documentation
Documentation
  • Do supervisors maintain incident logs?
  • Have verbal warnings been documented/retained in personnel files?
  • Are copies of written warnings retained?

Quality Representation, Personal Service

documentation cont
Documentation (cont.)
  • Verbal warning
    • Employee/supervisor’s name & date of warning
    • Reason for warning
    • Opportunity for employee to respond
    • Corrective measures
    • Statement that failure to correct will result in more serious discipline, including up to termination

Quality Representation, Personal Service

documentation cont1
Documentation (cont.)
  • Written warning
    • Signed acknowledgement/date from employee
    • Signed/dated by supervisor
    • Include acknowledgment from employee that the failure to undertake corrective measures will result in more severe discipline
    • If employee refuses to sign, supervisor should note

Quality Representation, Personal Service

performance appraisals
Performance Appraisals
  • Do they match the employee’s performance?
  • If not, may be difficult to discipline/terminate/prevail in litigation

Quality Representation, Personal Service

do you investigate
Do You Investigate?
  • Does law require investigation?
  • Is there a contractual obligation to investigate?
  • Concerns for future liability?

Quality Representation, Personal Service

choosing the investigator
Choosing the Investigator
  • Match the investigator to the situation
  • Consider training and qualifications
  • Consider nature of allegations
  • Consider second investigator for corroboration

Quality Representation, Personal Service

principles underlying investigations
Principles Underlying Investigations
  • Fairness
  • Notice to accused
  • Opportunity to respond
  • Fundamental fairness
    • Does the result pass the “smell test?”

Quality Representation, Personal Service

gathering information
Gathering Information
  • Consider all records, voicemail, e-mail, telephone records, computer records, photographs and security videotapes
  • Preserve originals
  • Interview witnesses
  • Maintain impartiality
  • Preserve confidentiality
  • Focused questioning

Quality Representation, Personal Service

making the decision
Making the Decision
  • Consider suspending pending investigation before immediately terminating
  • Have you interviewed all witnesses, including accused and those witnesses identified by accused?
  • Have you followed the policy?
  • Have you acted fairly/non-discriminatorily?
  • Have you documented everything?
  • Do you have a witness at the termination meeting?

Quality Representation, Personal Service

documenting the decision
Documenting the Decision
  • Equally important as documenting the investigation
  • Helps establish rationale behind decision

Quality Representation, Personal Service

guarding against retaliation claims
Guarding Against Retaliation Claims
  • Retaliation claims fastest growing EEOC claim
  • Need to advise Complainants and other participants of no tolerance for retaliation
  • Follow up to ensure that no retaliation has taken place

Quality Representation, Personal Service

questions
Questions?

Albert (“Bert”) B. Randall, Jr., Esq.

Franklin & Prokopik

The B&O Building

2 N. Charles Street, Suite 600

Baltimore, MD 21201

(410) 230-3622

[email protected]

www.FandPnet.com

Baltimore MD u Easton MD u Hagerstown MD u Herndon VA u Tampa FL u Wilmington DE

Quality Representation, Personal Service

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