#gagtc15 employment law basics for the small office john l. weltin, constangy, brooks, smith &...
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#GaGTC15
Employment Law Basicsfor the Small Office
John L. Weltin, Constangy, Brooks, Smith & Prophete LLP
[email protected](478) 621-2402
Most Common Employment Issues Which Arise and How to Thwart Them
Most Common Reasons Employers Are Sued:
Not acting as the employer “should have” Failing to present enough evidence to support its
decision Not being “fair” – blindsiding employees
Failure to communicate expectations or give employee notice when they are not meeting them.
Absence of opportunity to defend. Lack of consistency (e.g., application of policies) Insult to dignity
How Do You Resolve Those Issues?Treat Employees FairlyExplain the Reasons Communicate Expectations Up Front and
Give Employees Chance to “Fix” ProblemsRemain Consistent in Application of
PoliciesRespect the Dignity of the Employee(yes, this is easier said than done. . .)
So What Can We Do To Prevent Problems?
Do’s and Don’ts of Management
Dos and Don’ts of Management Clarify to employees what behaviors are
expected and what behaviors are not expected. Explain to employees the consequences of
departing from expectations, rules, standards, policies, and procedures.
Provide prompt, specific feedback to employees when they depart from expectations, rules, standards, policies, and procedures.
Provide specific and concrete advice to employees about how to improve.
Monitor employee behavior, providing sufficient time for employee to improve.
Take increasingly severe measures when employees do not improve, or
Commend employees when their behavior does improve while emphasizing that they will continue to be held accountable for behaving in ways consistent with the organization’s requirements.
Do’s and Don’ts of Management
Documentation Procedures
Documentation Procedures- Do’s and Don’ts
• Do’s:– Documents are “blueprint” of the process– Give written warnings– Give REAL performance evaluations – Document absences and leave– Document Key Events (Timely, Accurately)– Keep Confidential Information Confidential– Date and sign all reports and investigation files
Coaching and Corrective Action
Coaching and Corrective Action Educate, Motivate & Rehabilitate!
•Verbal Counseling
• Written Warning
• Final Written Warning /
• Suspension
• Termination
•Coaching
7 Steps to Successful Coaching1. Start positive.2. Be specific.3. Be prepared to identify a plan to correct the situation.4. Insure the responsibility to correct individual behavior
or performance issues is placed clearly on the employee.
5. Stay A) in control and B) under control.6. If possible, close with a positive statement of support.7. Focus on getting “buy-in” on the part of the employee.
Importance of Documentation
Why Does It Matter Anyway?
Documents support events.
Documents refresh memories.
Documents should leave no room for misunderstanding.
What Should Be Contained In A Disciplinary Memo
• Date• Specific Violation• Mention Any Prior Related Discipline• If No Improvement- What Will Happen?• Employee Response• Employee Commitment• Signature of Employee• Supervisor’s Follow Up
What Concerns Your Lawyer
Favoritism/Special Treatment Inaccurate Performance Reviews Progressive Discipline Not Followed Not Keeping Disciplinary Actions Private Unsigned Discipline Secret Files
Example of Importance of Documentation
Example of Importance of Documentation
• Don’ts– Never surprise an employee with what you
write.– Don’t document trivial or irrelevant matters– Don’t make “side notes” about individual’s
personal characteristics (“older, attractive woman” – “seems to have chip on his shoulder”)
– Don’t keep “little black book” on employees – if it is worth documenting, document it and let HR Manager review/ place in file.
Documentation Procedures- Do’s and Don’ts
MEMORANDUM FOR Gomer PyleDATE January 30, 2012FROM: SupervisorRE: Warning
On January 30, 2012, you arrived for work at 8:47 a.m. The normally scheduled production shift starts at 6:30 a.m. This is the second time you have shown up to work almost two hours late.
When you were hired you signed for an Employee Handbook. Section 1.7 of the Employee Handbook lists the “regular hours of work” for production employees (6:30a.m. – 3:30 p.m.). Section 1.8 states that an employee “shall not be tardy, and any tardiness can result in discipline, up to and including termination.” This is important because tardiness places a strain upon the business and causes other employees to have to do extra work.”
You are warned that future tardiness will result in further discipline, up to and including termination.
__________________Bob BarkerFirst Shift Supervisor
I acknowledge receipt of this memorandum of oral warning and acknowledge that I have been given 24 hours to submit written comments if I disagree with this.
Received at ____ (a.m./p.m.) on January ___, 2002.
_________________Gomer Pyle
Approved by Manager and/or HR _____ (initials) _______ (date)
The idea
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– Many, frequently, often– Bad attitude– Insubordination– Work area is “constantly” “dirty”– He was “intoxicated”– Failure to “follow instructions”
Be Descriptive – Watch Pure Conclusions
DATE of Creation Name/SIGNATURE of Author Names/Signatures of Witnesses Proper identification of pages
In Sum, Employment Documents Should Contain:
A Few Words About Performance Reviews
PERFORMANCE REVIEWSBest Practices
– Should be a helpful process– Direct managers/ supervisors should be involved– Facts rather than opinions– LISTEN (don’t just talk)– Be Familiar with form– Trouble expected? Have 2 witnesses.– No informal notes.– Have Employee sign review.
Quotes Reportedly Taken From Actual Performance Evaluations
“Since my last report, this employee has reached rock bottom and started to dig.”
“He sets low personal standards and then consistently fails to achieve them.”
“This employee is depriving a village somewhere of an idiot.”
“Got a full 6-pack, but lacks the plastic thing to hold it all together.”
“A gross ignoramus -- 144 times worse than an ordinary ignoramus.”
“He doesn’t have ulcers, but he’s a carrier.”“When his IQ reaches 50, he should sell.”“If you see two people talking and one
looks bored, he’s the other one.”“A photographic memory but with the
lens cover glued on.”“Some drink from the fountain of
knowledge; he only gargled.”
Quotes Reportedly Taken From Actual Performance Evaluations
Managing Employees: Is there ever a good way to discipline or terminate an
employee?
1) Is this Individual in a Protected Category – if so, what category?a) Race, age, sex, religion, workers’ comp, whistleblower?
2) Are There Similarly Situated Employees? Have you Been Consistent?
a) What happened the last time this situation came up?b) What will you do the next time the situation comes up (are
you prepared to take the same steps).c) If this was your best sales person (or nurse, or whoever),
would you be terminating them?3) Is there a policy which applies to the conduct/ performance
which requires termination/ discipline?4) Have you followed the company’s steps for terminating –
progressive discipline, etc.?
Before Disciplining/Terminating Employee, Ask:
5) DOCUMENTATION: Is there documentation of the conduct/ prior performance issues?
6) Is the Person going to be surprised by this termination/ discipline??
7) Has manager/ HR reviewed decision/ approved?8) How is termination communicated to person
(witness) and others? (gossip?)9) Is this REALLY a terminable offense?
(insubordination/ mitigating factors)?
Before Disciplining/Terminating Employee, Ask:
CCONSTANGY, ONSTANGY, BBROOKS ROOKS SSMITH, LLCMITH, LLCL A B O R E M P L O Y M E N T L A W W O R K S H O P
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Reductions in Force: Key Steps
Best Practices in Termination Meeting
• Speak with Employee during Investigation
• Have Witness in Meetings• The right witness
• Don’t argue with employee – Don’t Allow Manager to Argue Either.
• Security- Is it necessary?
• Don’t kick ‘em in the teeth on the way out (but have paperwork ready)
Best Practices in Termination Meeting
• Side Note: Personnel file –Check with Human Resources regarding their policy about giving out Personnel files BEFORE you respond to any requests!
Final Practice
Follow The Golden RuleAnd The Gold Will Follow!
It’s Not the Big Things . . .
5 Ways to Lift Spirits
1. Write them. 2. Feed them. 3. Look for Opportunities to Recognize
Employees4. Visit Employees in Their Time of
Need5. Praise Employee in front of Spouse
or Children
I’m No Rocket Scientist . . . But
Insanity: doing the same thing over and over again and expecting different results.
Albert EinsteinUS (German-born) physicist (1879 - 1955)
