the ten deadly questions
DESCRIPTION
The Ten Deadly QuestionsTRANSCRIPT
The Ten Deadly Questions
John P. Boggs, Esq.Fine, Boggs & Perkins LLP
Speakers
Moderator Presenter
Becky RossMarketing Manager
303-228-8753
John P. Boggs, Esq.Fine, Boggs & Perkins LLP
Questions
• If you have questions during the presentation, please submit them using the “Questions” feature
• Questions will be answered at the end of the webinar
Agenda
Performance Improvement Plans– Performance Deficiencies– Rule Violations
The Ten Deadly Questions
Termination Checklist
Conducting the Termination
4
1. Performance Deficiency
* Follows the Rules but just can’t live up to expectations
2. Rule Violations
* May perform well but can’t seem to follow the rules
COMBINATION OF BOTH
Two Reasons for Discipline or Termination
Rule Violations
F.I.N.E.Find Published Rule (Employee Handbook)Identify Specifics of How Rule was BrokenNotice as to What is ExpectedExplain Outcome if Continues or Decision Now
Discipline/Termination
Performance Deficiencies
N.E.A.T.Notice of Expected StandardExplain
1. Performance Deficiency2. What Must Be Done
Assistance to ImproveTime to improve
Discipline/Termination
FALSE PRETEXTThe reason given for discipline was untrue; and
-The true reason for discipline was discrimination.
-Discrimination is considered to have been a “reason” if it was a motivating factor.
Avoidance The Appearance of Discrimination
1. Do you feel comfortable after your investigation that you will be able to prove, with evidence, that the employee violated the rule, or the standard of performance was not met, and that you have treated other similar situations with the same level of discipline in similar circumstances?
Legal Liability Checklist
2. Are there any prior commitments (written agreements or promises) in employee's personnel file regarding a specific term of employment, continued employment or a requirement of just cause for termination of employment?
Legal Liability Checklist
3. Are there any complaints or claims (formal or informal) that the employee has made against the company, any co-worker, customer or vendor? (e.g., harassment, discrimination, retaliation, unpaid wages, workers compensation claims, safety issues, labor regulation violations, dishonesty, customer fraud or other claims that the company violated the law in any way, etc.)
Legal Liability Checklist
4. If the employee falls into a "protected category" (e.g., minority, race, religion, color, sex, sexual orientation, national origin, ancestry, citizenship status, uniform service member status, marital status, pregnancy, age/over 40, medical condition—cancer related or HIV/AIDS related, disability, or transgender status), does the employee's "protected category" represent a relatively small portion of your workforce or the employee's work group.
Legal Liability Checklist
5. Has the employee taken any leaves of absence within the last year? (Medical leave, Family Care leave, Pregnancy leave, Drug/Alcohol Rehabilitation leave, Workers Compensation leave, etc.)
Legal Liability Checklist
6. Have you disciplined others for this same general rule violation or performance deficiency?
Legal Liability Checklist
7. Has the level of discipline imposed been substantially the same for the same violation or performance deficiency for other employees?
Legal Liability Checklist
8. Have you failed to discipline anyone for the same general rule violation or performance deficiency, even though some other employees may have been disciplined for it?
Legal Liability Checklist
9. Have you given different levels of discipline to different employees for the same general rule violation or performance deficiency?
Legal Liability Checklist
10. Do you plan to terminate the employee?
Legal Liability Checklist
Rule Violations• Investigative Statements or Questionnaires
• Written Record of Investigation• Signed Under Penalty of Perjury
• Interview the Accused • Have a Witness• Complete & Sign the Statement • Suspend the accused pending completion
of the investigation
Build Your Case
Find out what has been done in similar situations in the past.
Also consider whether any other employees currently are in a similar situation.
Compare the protected categories of current and former employees in similar situations.
Avoid Discriminatory Decisions
Determine if you can distinguish leniency in similar situations.
Document why current discipline scenario is different than other non-discipline scenarios.
“Start Fresh” and hold back on more severe discipline
Avoid Discriminatory Decisions
• Do not terminate in anger or with enthusiasm
• Require a second approval within the organization
• Suspend pending investigation
• Contact counsel prior to termination
• Identify the Land Mines
Termination ConsiderationsTermination Considerations
QUESTIONS?
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