tara k. burke angela quiles nevarez · 2 represents management exclusively in every aspect of...
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©2019 Jackson Lewis P.C.
Angela Quiles Nevarez
Jackson Lewis P.C. | Philadelphia
angela.nevarez@jacksonlewis.com
267.319.7817
Tara K. Burke
Jackson Lewis P.C. | Cincinnati
tara.burke@jacksonlewis.com
513.322.5027
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Represents management exclusively in every aspect of employment, benefits, labor, and immigration law and related litigation.
850 attorneys in 57 locations nationwide.
Current caseload of over 6,500 litigations, approximately 650 class actions.
Founding member of L&E Global.
A leader in educating employers about the laws of equal opportunity, Jackson Lewis understands the importance of having a workforce that reflects the various communities it serves.
About the Firm
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Jackson Lewis is pleased to offer this webinar in conjunction with Exponentum.
Exponentum’s member organizations provide legal and educational services to nonprofits serving low-income and disadvantaged neighborhoods across the United States, including major metropolitan and surrounding areas in California, Connecticut, Florida, Georgia, Illinois, Massachusetts, Michigan, New Jersey, New York, Ohio, Pennsylvania, Texas, Washington, D.C., and Washington State.
Visit www.lawyersalliance.org/National_Network.php to learn more.
Exponentum
Bay Area Legal Services (Tampa)
D.C. Bar Pro Bono Center (Washington D.C)
Lawyers Alliance for New York (New York City)
Lawyers Clearinghouse (Boston)
Michigan Community Resources (Detroit)
Philadelphia VIP (Philadelphia)
Pro Bono Partnership (Hartford, CT; Parsippany, NJ; White Plains, NY)
Pro Bono Partnership of Atlanta (Atlanta)
Pro Bono Partnership of Ohio
(Cincinnati and Dayton)
Public Counsel (Los Angeles)
San Diego Volunteer Lawyer
Program (San Diego)
Texas C-Bar (Austin)
The Justice & Diversity Center
(San Francisco)
The Law Project (Chicago)
Wayfind (Seattle)
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Exponentum Members
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Jackson Lewis P.C. has prepared the materials contained
in this presentation for the participants’ reference and
general information in connection with education seminars
presented by the firm and its attorneys. Attendees should
consult with counsel before taking any actions that could
affect their legal rights and should not consider these
materials or discussions about these materials to be legal
or other advice regarding any specific matter.
Lawyer’s Disclaimer
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What goes in a personnel file?
• I-9 File
• Medical File
• Personnel File
What stays out of a personnel file?
Other documents you may want to consider segregating from the personnel file
Who can see the file?
What to do with the file when the employee leaves?
How long do you need to keep the file?
Personnel Files 101
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Smith and Smith PLLCAttorneys at Law111 Fifth Street, Suite, 123Cincinnati, OH 45202
Dear [YOUR NAME HERE]:
Sophia Black, your former Employee, has retained this firm to prosecute her claims of genderdiscrimination, age discrimination, and retaliation arising from, and relating to, her employment with theFoundation. Specifically, Ms. Black has related facts which indicate that the Foundation, through the actionand inaction of its various agents, including its managers, has violated numerous laws against discriminationand retaliation when you terminated her employment in February 2019.
Ms. Black dedicated her life to your organization. She was disciplined several times without cause andultimately fired for discriminatory reasons even though you told her it was for performance. We know thatwas false.
My client has authorized us to engage in settlement negotiations. Unless we hear from you, we will becommencing formal proceedings relating to this matter on or about June 1 seeking back pay, emotionaldistress damages, and punitive damages. In the meantime, please send me all documents related to Ms.Black.
Very truly yours, Anna Smith, Esq.
What Would You Do?
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DOCUMENTATION DECREASES LITIGATION
In addition to the value with a jury, appropriate
documentation can defer potential litigation:
Decreases feelings of angst by employee.
Shows potential attorneys that you have given the
necessary thought and attention to sound business
practices.
The Importance of Good Documentation
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Fair notice to employee
Memory aid for manager
Detecting performance or conduct patterns
Jury research: if the supervisor did not bother putting it
in writing, it must not have been important!
The Importance of Good Documentation
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Is your state an “at-will employment” state? If so, what does
that mean?
It means: you can terminate someone for any reason you
want, so long as the reason is not specifically illegal (like
discrimination).
It does not mean employers can do whatever they please.
The lesson:
• Good, provable, concrete reason (legitimate, nondiscriminatory
business reasons)
• Documentation
• Comparables
Wait! What About At-Will Employment?
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Every employer faces discharge and discipline decisions
To avoid liability, you need to be sure decisions to
terminate and discipline are:
• for job-related, nondiscriminatory reasons
• do not violate contractual commitments
• comply with company policies
• are consistent
The Importance Of Good Documentation
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Failure To Act
Inconsistency
Failure To Document
Errors to Avoid
Timely – created at time of
incident
Specific, plain language
Objective – records key facts
Limited to performance and
behavior
Accurate and verifiable
Complete record for basis of
decision
Includes corrective steps, not
just infractions
Avoids extreme or conclusory
statements – no “always”
“never”
Free of hearsay, innuendo,
supposition, emotion
Free of references to protected
characteristics
Dated, identifies author and
witnesses, if any
Logically communicates
information to employee
©2018 Jackson Lewis P.C.13
What Is Good Documentation?
* Demonstrates that the employee was treated fairly.
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Hiring Documentation
Documentation of work performance
• Performance evaluations
• Documentation of verbal counseling
• Discipline
Documentation justifying pay increases, promotions, etc.
• Personnel Action Request forms
• Attach separate document explaining why the decision was made (equity increase, promotion, transfer, demotion, etc.)
Termination Documentation
What Records Should be Maintained and How
Should These Records be Kept?
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Do not make notations on applications and resumes or
create documents that may prove problematic later
Do not use symbols as memory aids to keep track of
applicants
Do make a record of why the selected person was
chosen and why other candidates were not selected
Do forward your interview notes to HR for safekeeping
Hiring Documentation – Dos and Don’ts
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Do evaluations on time
Review previous evaluations/discipline
Tailor the evaluation to the job description
Evaluate performance, not the person
Use objective facts, not subjective conclusions
• Cite specific examples to support conclusions
• Positives and negatives
• Provides expectations, objectives, and consequences
Performance Evaluations – “Musts”
Example
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© 2018 Jackson Lewis P.C.
Example
Joe is not a good team player
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Example
© 2018 Jackson Lewis P.C.
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Joe did not participate in team meetings on January 5, March 3 or August 4.
Joe needs to attend and participate in team meetings.
www.jacksonlewis.com20
Rating employees higher than warranted to get them salary increases
Avoiding direct and honest statements of the REAL reasons for poor performance – the Mr. Nice Guy Syndrome
Withholding feedback until something “big” happens and/or including performance problems in the evaluation never previously addressed
Sudden deterioration in performance after many years of acceptance
Contradicting written review in meeting with employee
Performance Evaluations – Mistakes to Avoid
Quotes from lawsuits routinely filed in court:
• “Prior to plaintiff being injured on the job and filing a claim for
workers’ compensation, plaintiff’s evaluations had been good
and she had not been reprimanded in 3 years of employment.”
• “Throughout his employment, Plaintiff was a loyal and dedicated
employee who consistently received positive performance
reviews.”
Performance Evaluations – Inflated Evaluations
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To clearly identify performance issues
To define Company expectations
To provide coaching and direction to help the employee
succeed
To minimize miscommunication
To avoid memory discrepancies
To avoid or defend wrongful termination lawsuits – the
“silent witness”
Documenting for Discipline:
The Goal Of Corrective Action
©2018 Jackson Lewis P.C.23
Tom fails to pay attention to his work
WITH
Tom gave the wrong patient chart to the doctor on
March 2, 2019
Sally is always late
WITH
Sally was late on May 1, May 3, May 8, May 17, May 2
Compare:
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What to include?
• Name, date, specific offense or rule violation; specific statement
of expected performance, and what will happen if this
expectation is not met.
• The facts. If in dispute, how/why you reached your conclusion.
• Include reference to prior disciplinary action and employee’s
failure to improve.
• Include explanation given by employee if supervisor feels it is
appropriate.
Proper Documentation For Corrective Action
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How to word it?
• Accuracy – do not sugar coat.
• Objectivity – state facts, not opinions, and no legal conclusions.
- “Bob engaged in illegal sexual harassment. . .”
- “Claire was obviously lying . . .”
- “Joe asked for a special chair. I provided him with one since he has
a disability.”
• Consistency – same documentation for all similar offenses.
Proper Documentation For Corrective Action
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Wrong: Show up on time.
Right: Our attendance policy states that the workday
begins at 8:00 am. You received the policy on 4/1/17.
Wrong: Turn in your reports on time.
Right: Per the attached email, I requested that you
provide me the report by 4:00 pm on Monday.
Proper Documentation For Corrective Action
Example
To: Sally Smith
From: Manager Tom Jones
Date: February 12, 2019
As we discussed today, your tone when speaking with clients needs
immediate improvement. Specifically, today I heard you raise your
voice at a client over the telephone. This is the second time in the past
month I witnessed such an incident. After the first time, I met with you
and reminded you of the importance of treating clients with respect, and
we discussed that it is inappropriate to raise your voice at a client.
Further instances of this nature may lead to disciplinary action, up to
and including termination. Immediate and sustained improvement is
required.
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Corrective Action
Name of Employee: Date:
Department: Date(s) of Incident:
Position: Date of Hire:
INCIDENT: This Corrective Action is being issued due to the following performance issue(s) and/or unacceptable conduct.[ Include reference to any Company policies as appropriate. List
date and type of previous corrective action(s). Also list any previous verbal coaching on same or related issue.]
We expect immediate and sustained improvement. Any future issues will result in additional discipline up to and including termination of employment.
CORRECTIVE ACTION TYPE: Identify corrective action (e.g., documented verbal, written warning, final warning, termination, other).
CORRECTIVE ACTION REQUIRED: Going forward the following action(s)/conduct is required.
EXPECTATION: You are expected to make sustained and continuous improvements and to satisfactorily maintain all other aspects of your performance. Failure to do so may result
in further corrective action, up to and including termination of employment. You are employed on an at-will basis. Accordingly, either you or the Company may terminate the
employment relationship at any time, with or without cause or advance notice. Nothing contained in this document is a guarantee of continued employment for any specific, fixed
period of time.
By signing below, you acknowledge that _____________ and _____________ met with you on {date} and discussed this Corrective Action. You further acknowledge that you have
reviewed and understand the statements contained in this document and you have had an opportunity to ask questions.
Employee’s Signature: Date:
Supervisor’s Signature: Date:
Human Resources/Manager Signature: _______________________Date: ______________
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Discuss the action(s) being taken, correlating to
company policies/procedures
• “… you will receive a three-day, unpaid disciplinary suspension
beginning on June 1, 2019 for violation of the organization’s anti-
harassment policy”
Clearly explain retaliation is prohibited and is grounds for
further disciplinary action
Letter goes into the accused’s personnel file and a copy
in the confidential investigation file
Proper Documentation for Corrective Action
Document Verbal Discussions
11/1/18 Spoke to Phyllis about quality errors
11/5/18 Reminded Eric to be on time
11/7/18 Asked Beth to help her co-workers
11/9/18 Reminded Beth to watch her sarcasm and tone with co-workers
© 2018 Jackson Lewis P.C.
Even with a multitude of high-tech options
to communicate, over 90% of employees
still prefer to get their information face-to-
face with their direct supervisor.
Source: Society for Human Resource Management
Communication Is Key
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Involve higher chain of command
Ensure investigation establishes decision is based upon
facts - not perception, hearsay or speculation
Establish clear, non-discriminatory basis for termination
Document reason(s) for termination
Review documentation for completeness
Review personnel file for inconsistencies
Proper Documentation for Corrective Action -
Termination
Emails
Dance like no one is watching;
email like it may one day be read
aloud in a deposition.
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Thank YouWith more than 900 attorneys
practicing in major locations
throughout the U.S. and Puerto
Rico, Jackson Lewis provides
the resources to address every
aspect of the
employer/employee
relationship.
jacksonlewis.com
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