Legal Dos and Donts for Hiring and Firing

Documentation, Discipline and DischargeAndrea Shindlebower MainKentucky League of CitiesFebruary 2014Discharge of Employee - Important to NoteIt 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 DischargeAt-Will EmployeeWhat does is mean?What are the limitations?Prevention Proactive strategies to help prevent the need for discipline and dischargeDocumentation Who, What, Where, When, How & WhyDischarge ProcessBefore, During and After

Employment At Will What does it mean?Employment at WillEmployer 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 WorkBeing too attractiveWearing Green Bay Packers Tie

*Disclaimer we do not recommend using these reasonsEmployment At Will- LimitationsEmployment at Will is LimitedFederal, state and local laws can limit at-will terminationsFederal Laws:Title VII of the Civil Rights Act Protects against discrimination based on:Race Gender National origin Color ReligionAge (over 40) DisabilityMilitary 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 terminationRecruiting, Selection, and HiringTrainingClassification, Assignment and TransferCompensation, including fringe benefitsWork EnvironmentPromotion and demotionDisciplineAny other aspect of employment constituting a term or condition.

Employment At Will LimitationsEmployment at Will is Limited (cont.)State Law:Kentucky Civil Rights Act KRS 344Same 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 LimitationsAge Discrimination in Employment ActAge 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 LimitationsAge Discrimination (ADEA) (cont.)Lay offIf 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 LimitationsPregnancy 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 LimitationsPregnancy Discrimination Act (cont.)Cannot terminate an employee based on the fact that they cannot perform a job due to the pregnancyIf no accommodation available they would be entitled to leave based on your personnel policies OR past practiceFMLA 50 or more employeesPTOUnpaid leaveEmployer cannot move pregnant employee to another position because of the employers safety concerns. Employee can voluntarily request to be movedEmployer would accommodate as they would any other employee with a temporary disabilitySpecific Federal and State Law LimitationsADA (Americans with Disabilities Act)Protects employees with a disability that are qualified to do a job with or without a reasonable accommodationUnder the ADA, an employee has a disability if they have a physical or mental impairment that substantially limits a major life activityMajor 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 LimitationsADA (Americans with Disabilities Act)The ADA also protects employees that have a history of a disabilityOr if an employer believes that an employee has a disabilityAn 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 LimitationsADA (Americans with Disabilities Act cont.)Cannot termination a person with a disability because they can no longer perform a jobReasonable AccommodationsA 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 LimitationsADA (Americans with Disabilities Act cont.)Reasonable Accommodations Undue HardshipThe 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 LimitationsAre 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 TTYto 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.

Example C This is not a reasonable accommodation - Although this is a request for a change at work, his statement is insufficient to put the employer on notice that he is requesting reasonable accommodation. He does not link his need for the new chair with a medical condition.

16Specific Federal and State Law LimitationsUSERRACannot 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 LimitationsUSERRA - FYIRequires reemployment of individuals with no loss of pay, seniority, or other benefits. Five conditions of reemploymentMust have a civilian jobMust provide written or verbal notice prior to leavingMust not exceed the 5 cumulative years of service Exceptions to the 5 year rule:Unable to obtain release from serviceRequired drills and annual training and other training duty certified by the militaryService performed during national emergency or time of war includes voluntary and involuntary serviceMust be released from service under conditions other than dishonorableMust report back to the civilian job in a timely manner or submit a timely application for reemployment.

Employment At Will LimitationsEmployment at Will is Limited (cont.)Local LawsFairness ordinances Sexual Orientation and Marital StatusMorehead, Vicco, Covington, Lexington, LouisvilleLocal ordinance limiting action to for cause or good cause. Implies a fair and honest reason for terminating an employeeMayor / Council form Mayor still has ultimate authority to remove

Employment At Will LimitationsCity Specific Issues by State LawPolice and Fire (KRS 95 and KRS 15)Hearing processNon-elected officers (KRS 83A.080)Written Reason for DismissalCity Managers (KRS 83A.150)Hearing processUrban County Governments (KRS 67A.280)Hearing processCivil Service System (KRS 90)Hearing processEmployment At Will LimitationsCity 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 insuranceLess 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 LimitationsHowever 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 Rottinghaus v. 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 LimitationsQuestions about employment at will or the limitations?An Ounce of Prevention Proactive instead of ReactiveHow do you become proactive instead of reactive? Treat all employees with:DignityRespectCourtesyFairnessAn Ounce of Prevention Proactive instead of ReactivePoor employee relations can result in the need for disciplinary measures as they can cause:AbsenteeismPoor PerformanceLow MoraleTurnoverLitigationAn Ounce of Prevention Proactive instead of ReactiveWhat else can you do that is proactive?Determine major job dutiesClear job descriptionsMake sure they are current update frequentlyDefine Performance StandardsTo 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 expectationsProvide an orientation or on boarding program for new employeesReview job descriptions and performance standards with employeesHave written policies and procedures regarding rules and review them with employees

An Ounce of Prevention Proactive instead of ReactiveWhat else can you do that is proactive? (cont.)Establish a climate of communicationOpen door policyProvide ongoing coaching and feedbackHow well are they doing?What can they do to improve?Document job performanceThe good and the badEvaluate job performanceAnnually bi annually follow policyProvide effective training & resourcesAn Ounce of Prevention Proactive instead of ReactiveQuestions or comments about being proactive?Progressive Discipline -PrinciplesFour Principles Surrounding Effective DisciplineCorrectiveFairConsistentProgressive

Progressive Discipline -DefinitionProgressive 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 situationSimilar situationSerious situationSeries of situations - bundlingProgressive Discipline -GoalsGoals of Progressive DisciplineCorrect 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 -GoalsGoals 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 -StepsProgressive Discipline StepsCoaching / Review ExpectationsVerbal ReprimandWritten ReprimandSuspensionTerminationWhat is set out in your city policies!Progressive Discipline -StepsStep 1 CoachingWhat is the goal of coaching?Reestablish ExpectationsResolve the problem before it progresses any furtherAddress minor infractions before they come major infractionsEstablish two way communicationsClearly identify the substandard performance or behaviorProgressive Discipline -StepsStep 2- Verbal ReprimandWhat is the Goal?Informal communication to the employee about an issueDiscussions need to include:Specific incidentTime and place of the incidentEffects of the incidentSet expectationsPossible consequencesFollow the verbal reprimand with a confirming memoProgressive Discipline -StepsStep 3 Written ReprimandWhat is the goal?Last chance agreementLets the employee know that a breach of a final written warning could or will result in dischargeA final warning offers few alternativesSpecifics on documenting written reprimands is addressed in the next sectionProgressive Discipline -StepsStep 4- SuspensionGoal of suspension?Used to investigate the factsProvides breathing space to deal with what appears to be serious misconductAllows time for consultation with higher levels of authority who are not readily availableNever terminate on the spot even if employee has seemingly made a dischargeable offense, instead investigateCollect evidence from both sides of the story and get the board of commissioners and the city attorney involvedInvestigate within 48-72 hours of the incident

Progressive Discipline -StepsStep 4- Suspension (cont.)Review past practice.Make sure that other employees have been treated in the same way in other similar circumstancesSuspension is the last means of corrective action prior to terminationNormal length of suspension should not exceed 3 working daysHowever, there may be times where longer or shorter suspensions will occurRead your policy regarding pay during suspensionIf unpaid and employee found to be innocent they need to receive back pay for the time they were suspended without pay.

Progressive Discipline -StepsStep 4- Suspension (cont.)Basics of Suspension LetterA suspension letter should include:Review of past disciplinary action, if anyPolicy regarding suspensionSpecific reason for suspensionExpected behavior or performanceThat suspension is their last warningFurther violation may result in dischargeThe length of suspensionThe date and time employee is to resume work

Progressive Discipline -Questions?Questions about progressive discipline?

Documentation What Actions Call for Documentation?DocumentationWhat employment actions call for documentation?Mid-year and or annual performance reviewsViolation of city policy, procedure, practice, or code of ethicsAttendance issuesPoor performanceDemotionsPromotionsChange in job dutiesTraining needs and accomplishmentsMerit increase decisions based on performance

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

Documentation GoalsDocumentationWhat is the goal of documentation?To create a record of employment historyWhy is documentation so important?It establishes a record of employment actions taken and the reasons for the actionsMemories failIf promotion or termination occurs you need something to back it up!Informs employees of what is expected of them and the consequences if they dont meet expectationsEmployees should never be surprised when they are in a termination meeting

Documentation ImportanceDocumentationWhy 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 improveOr advises the employee that they are on the right pathIt serves as evidence for actions taken, in the event the employee takes formal or informal steps with a claim against the cityIt assures fair and equitable treatment to all employees

Documentation What if there is no documentation?DocumentationWhat are implications of not documenting?Performance or behavior doesnt improveNegative impacts on the city, as well as employee morale, and eventually the managers own performanceIncreased frustrationManagers / Department HeadsCo-workers

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

DocumentationWho is Responsible?DocumentationWhat documentation is supervisor/manager responsibility?Handwritten or typed notes from coaching or counseling sessions with employees. Written comments including specific examples in performance reviewsDisciplinary actionsWarning documents with specific examples and consequencesBusiness reasons for employment actionsDemotionsPromotionsLayoffs

When to Consult?When to consult with city attorney (cont.)DemotionsPromotionsWork/life balancing matters TelecommutingFlex scheduleHarassment claimsFinal written warningEgregious code of ethics or personnel policy violationsLayoffsTerminations

When to Consult?When to consult with city attorneyRequest of an accommodation religious and medicalWhat are the essential functions of the job?Job descriptionBefore terminating employee that is on FMLA or Workers CompCould it be considered retaliation for FMLA request or for being on workers comp?Significant changes to job dutiesJob description

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

Documentation Investigation DocumentationDo investigate each incident regardless of how it first appearsSelect an appropriate time and place to meet with the employee privatelyDocumentAllow the employee to explain Listen and respond in a calm mannerConfer with board of commissioners / city attorney for their recommendation on how to proceed based on your personnel policies, ethics ordinance, federal, state and local law.

Documentation InvestigationWhat to consider when investigatingFacts surrounding the incidentSeriousness of the infractionWas the employee informed of the work rulesHave they been previously advised, coached or warned about the issueThe degree to which the action hampers the citys mission or day to day operationAny previous documentation of performance problems in the last 3-6 months?Was the employee provoked?How thoroughly have you examined the issue?How were other employees who were in this situation disciplined?Consider policy vs. past practice

Documentation How to DocumentHow to documentFollow the city policyStart earlyMake it a habit to discuss all employees performance with the employee continuously as part of the performance management process.Include positive and negative feedbackTell employees in advance what is expected (on boarding or new employee orientation)

Documentation How to DocumentHow to document (cont.)Dont wait hoping the issues will improveThey usually wontDocument only the factsNot subjective thoughts or conclusionsSubjective example Your typing error rate is too highYou need to improve your customer service skillsDo any of these statements set expectations?Objective examples You are averaging 40 wpm while the departmental average for admins is 55 wpmI expect to receive zero customer service complaints over the next 30 daysQuantify!

Documentation How to DocumentDocumentationGood documentation answers these questions:WhoWas/Is involved and their positionAre there any witnesses?What Describe the incidentWhat rule or policy was violated?Where Was it on the city property?WhenDid it occur during work hours?Off duty?Not why unless the employee gives their own explanation

Documentation How to DocumentHow to document (cont.)Use city warning letter templateDescribe the specific behavior or actionsUse verbsDo not add comments, insights or interpretationsInclude a statement of the policy, procedure, ethics violation or rule that was violatedInclude the actual or potential consequences of the offenseIn addition to the discipline include:Burden on coworkersPossible hazards from the conductContribution to lack of harmony and cooperation among coworkersCosts to the city - lawsuits

Documentation How to DocumentHow to document (cont.)Include the outcome that is expectedWork Improvement PlanFollow-up date for a meetingDepending on the type of improvement that is requiredUsually 60-90 days Failure to improve as outlined in this letter by xyz date may result in further disciplinary actions, including termination.

Documentation How Should it Read?DocumentationNo matter how informal the documentation, ask yourself these questions:Do I restrict my written comments to an employee's on-the-job performance?Do I remain objective when it comes to analyzing an employee's work?Do I consider how my words may be construed as unprofessional, demeaning or sarcastic?Do I make certain that I get all the facts from all involved parties?How would it read in court?Does it suggest a discriminatory or retaliatory motive?

Documentation Formal Written WarningFormal written warningsAsk employee to sign indicating that they had the discussionreceived a copyand understood the documentFormal Written WarningWhat if they refuse to sign?Allow them to write a response and attach to the documentationHave third party come in to witness it was done

Documentation Formal Written WarningHow to document (cont.).

On January 12, 2014, I spoke with John Smith in regards to his excessive tardiness. I asked if there was a particular reason as to why this was happening on a daily basis. John said there was not and that he would be on time from now on.

What is missing?

60Documentation Formal Written WarningHow to document (cont.) - What was missing from the documentation on the previous slide?Needs specific dates of tardiness and the exact timesInclude references as to how this effects other employeesThey are having to pick up the slack when they are late and they are resentfulBad for morale because it is unfair that you can be late without consequences and they get to work on time every dayNeed an action planHave the employee assist in coming up with the action plan Can get up earlierCan lay out clothes the night beforeChange in hoursNeed consequences for not following through with action planIf employee is late one more time in the next 30 days they will be terminatedNeed a follow up date30 days February 12, 2014SignaturesEmployeeSupervisor

61Documentation Formal Written WarningFormal written warnings (cont)Give a copy to board of commissionersPlace in Personnel FileDocument the discussion from the meeting in writingDiscuss any issues with Board of Commissioners / City AttorneySample

Documentation Formal Written Warning SampleSample Letter Written Warning (On City Letterhead)Hand DeliveredDateEmployee NameHome AddressCity, Province, Postal CodeDear Employee Name,This letter will confirm our discussion today during which you were advised that your recent is not acceptable, specifically... You were also advised that immediate improvement is required. The plan that we discussed was .We rely upon each employee to perform their jobs to the best of their ability and at a satisfactory level as well as to abide by our policies, which are designed to make our working environment a positive and productive one. As a member of our team, when you fail to meet these expectations, it has a negative effect on the company and on your co-workers, which is not acceptable.

Continued

Documentation Formal Written Warning SampleSample Letter Written Warning Continued It is expected that you will immediately address this situation and that further discussions will not be required. However, if there is a need to again have a discussion arising from a lack of corrective action being taken by you, the company reserves the right to impose further disciplinary actions, up to and including suspension without pay and termination of employment.Should you require assistance or have any concerns going forward, please do not hesitate to discuss them with me. We continue to believe that you can be a valuable part of our team in the future and look forward to seeing positive actions and results from our discussion.Sincerely,SignatureManagers Namecc. Employee FileI understand the contents of this letter, the expectations of me from the company and that I will be subject to further disciplinary action should I fail to improve my .___________________________________________________________________Employee SignatureDate

Documentation SummaryREMEMBER:

Documentation is important for both the employee and the employerGood documentation answers the questionsWho, What, When and WhereDocument Early. Dont wait!

Documentation SummaryREMEMBER(cont.):

Discussions without documentation only equals misunderstandingsDiscuss and document only the factsGive specific examples on what the employee has done wrong and on ways they can improveAlways consult with your attorney on matters concerning FMLA, ADA, harassment claims, final warnings and definitely before terminationAsk employee to sign documentation of disciplinary actions

Documentation QuestionsQuestions about documentation?Discharge Pre-termination ChecklistNow what? Follow your pre-termination checklistMake sure all bases are coveredSample next slides

DischargeSample Pre-Termination ChecklistDocumentationPre termination checklist

The following items should be considered prior to the termination of an employee. Not all items will apply to all employees or all circumstances. ___ Determine if the termination is the fault of the employee or the system. If the latter, termination may not solve the problem and may lead to litigation, lowered morale and employee and customer defection. ___ The employees personnel file has been reviewed and there is proper documentation supporting the termination decision, including investigation, warnings and witness statements.

___ Any company policies and procedures violated by the employee are reasonably related to the operation of the business or the employee job performance.

___ The termination procedure follows company policies and procedures.

___ Other employees have been treated similarly under the same or similar circumstances.

DischargeSample Pre-Termination ChecklistDocumentationPre termination checklist Cont.

___ The employee has been subjected to progressive discipline where warranted.

___ If the employee is within a protected class (over 40, female, minority, disabled, etc.), discriminatory motives have been ruled out.

___ All employee complaints have been fully investigated and the recommended termination is not the result of retaliation for communicating any grievance, claim or complaint.

___ Before recommending termination, have you considered: restructuring the job; moving the employees work location; a demotion; a transfer; new supervision; leave without pay; referral to an employee assistance program; voluntary resignation; or other alternatives?

___ There are no implied, written or oral contracts with this employee governing the termination decision.

DischargeSample Pre-Termination ChecklistDocumentationPre termination checklist cont.

___ The termination has been independently reviewed and approved by the Executive Authority.

___ Written notice of termination has been prepared.

___ A plan has been adopted for informing the employee of their termination in a brief and dignified manner.

___Termination is set for xyz date in the morning at the employees office or in the conference room. ** Many studies suggest that Monday through Wednesday are the ideal days to part ways with an employee because it gives days for the ex employee to get their affairs in order and to contact the company with questions that may come up 24-28 hours after the separation. Many times they have questions regarding COBRA or unemployment. It also allows you time within the week to schedule your current employees for meetings and deal with reactions. Better to discuss quickly than to allow current employees the weekend to stew over it.

___ City attorney / liability insurance provider has been consulted prior to the termination decision.

Discharge Guidelines for the Termination MeetingBefore the termination meeting:Have written notes for what to communicate.Time the meeting carefully.Schedule a conference room in advance, if necessary.Hold the discussion in private.Have someone else in the room the mayor, commissioner, the supervisor, city attorney, or other HR person.Make sure that someone in the room has a good understanding of benefits in the event the employee has questions.

Discharge Guidelines for the Termination MeetingDuring the termination meeting:Avoid small talk.Plan the message and stay the course. The message of termination should be relayed immediately after the meeting begins. Avoid a long build-up to, soften the blow because this will only confuse and cloud the message.Remain calm.Clearly state the reason for the termination.The employee should be provided facts supporting the decision and then provided a moment or two for the words to settle. When speaking to the employee, managers should attempt to remain positive in tone. It is important to be compassionate, yet factual, and considerate, without being apologetic.

Discharge Guidelines for the Termination MeetingDuring the termination meeting (cont.):Avoid personal references or accusations.Make it clear that the employee is terminated and there is no negotiation. Be prepared for the employees reaction. Be prepared for the terminated employee to be upset or argumentative, but do not engage in debate. Saying the wrong thing in the heat of the moment could be costly in a future lawsuit.Repeat that the decision has been made with careful consideration by the city and no amount of talking or arguing will change the fact.

Discharge Guidelines for the Termination MeetingDuring the termination meeting (cont.):Discuss all issues that need to be closed Benefits, possible severance, pay out of paid time off (if applicable) and when to expect final paycheck Return of city property cell phones, laptops, keysProvide a copy of the separation notice.Conclude termination meetings with a handshake and genuine sentiment of best wishes, both personally and professionally. Empathy, and professionalism is key when delivering a termination message.Walk employee to the exit of the building.

Discharge Guidelines for the Termination MeetingAfter the termination meeting:Permissions, privileges and email should be shutoff as the meeting commences or shortly thereafter.Do not allow for long transition periods. Based on the situation, a terminated employee may be asked to leave the offices as soon as possible and should be escorted. If there is a concern about asking the person to perform the walk of shame during business hours, personal effects can be sent to the employees residence.

Discharge Practical Advice / After the TerminationPost-termination legal proceedings often begin when dismissed employees feel they were not treated with respect. It is important for employers to respond and consider requests of a terminated employee seriously. Employees may write seeking additional facts and explanations about their terminations. Cities should respond promptly and professionally.

Discharge Practical AdviceBelow is a list of common mistakes employers should avoid:Do Not - give employees false hope and say you will help them find a job.Do Not - offer to provide a recommendation unless you have considered this in advance and consistently provide such documentation to separating staff.Do Not - say, "I'm sure youre not going to have any trouble..."Do Not - pass the responsibility of the decision and say this firing was not your idea.Do Not - give platitudes such as: "Its probably for the best."Do Not - say: "I feel really bad about this." No one feels as bad as the employee being terminated.Do Not - interrupt, contradict or try to defend yourself or the city. Arguing will only create resentment and frustration on the part of the employee.Do Not - assess blame or make apologies. There is no reason to blame the employee or the city for the termination.Do Not - apologize, you can express regret that the employment relationship did not work out, but do not apologize.Do Not - take responsibility for the failure. You may want to simply express regret that the opportunity did not work out.Do Not - offer advice. Listen respectfully.Do Not - discuss the termination with anyone other than the employee and those directly involved.

Discharge What Now?After they are goneBreak the silenceIt is natural for remaining employees to be concerned about their own job security and about the treatment of their co-worker. It may be easier to just let the situation blow over, however, silence speaks volumes and you might not like what it has to say.Take control of the message by providing communication in a quick and concise mannerWhen discussing the termination with current employees, managers should be brief, general and respectful of the dismissed employees privacy. This is particularly important in view of the increasing number of defamation claims brought by terminated employees. A statement of a termination regarding the employees separation date and well wishes for the future is all that is needed.Handling the situation immediately following the termination allows the healing process to begin for the employees.

Discharge What Now?Termination based on performance problemsUsually this is not a surprise (if handled correctly) to other employeesMake a generic statement that the person is no longer with the cityDiscuss action plan to replace as quickly as possible and who will handle their job duties until that occurs

Discharge What Now?Termination based on egregious misconductExamples include harassment, theft of city property, or physical violenceCall a meeting to let employees know that the employee is no longer with the cityLet them know that you are not at liberty to discuss the specifics but that the employee was treated with respect, and that you ask that employees do not engage in hearsay out of respect for the former employeeDiscuss action plan to replace as quickly as possible and who will handle their job duties until that occursLet them know who external inquiries should go to

Discharge What Now?If this is a reduction in force:If possible allow the departing employees to say goodbye. Allows employees to see that the person was treated with respectCall a meeting with the employees to briefly acknowledge what has happenedFocus on the fact that there are no further plans to lay offEnd the meeting with an action planWho will handle the responsibilities of the person(s) let go

Documentation, Discipline & Discharge Questions??ashindlebower@klc.org859-977-3785