Upload
woodrow-glass
View
7
Download
0
Embed Size (px)
Citation preview
WARD & GLASS, LLPDEALING WITH THE TROUBLED/TROUBLING EMPLOYEE
WOODROW K GLASS
OVERVIEW
• EVALUATING EMPLOYEE PERFORMANCE• EMPLOYEE DISCIPLINE PLAN AND PROPER DOCUMENTATION• LEGAL V. ILLEGAL REASONS FOR TERMINATION• RETALIATION CLAIMS AND EMPLOYEE DISCIPLINE• NEGOTIATING SEVERANCE PACKAGES AND SEPARATION PAY• COMPLIANCE EXIT INTERVIEWS: DOCUMENTS AND DISCLAIMERS
SETTING THE TONE
EVALUATING EMPLOYEE PERFORMANCE
• ANNUAL PERFORMANCE EVALUATION• WHY DO WE NEED THEM• COMPANY POLICY • A MEANINGFUL PERFORMANCE EVALUATION
THE TYPICAL PERFORMANCE EVALUATIONS
• WE USE THEM WHEN THERE IS A PROBLEM• WE USE THEM WHEN WE ANTICIPATE A PROBLEM• WE USE THEM WHILE TRYING TO JUSTIFY OUR POSITION TO A PROBLEM• CHECK THE BOX
MEANINGFUL EVALUATIONS
• A TRUE EXCHANGE OF IDEAS• SOLICIT FEEDBACK• OBSERVATIONS OUTSIDE THE WRITTEN JOB DESCRIPTION• RECOGNIZE POSITIVE CONTRIBUTIONS • LISTEN – YOU CAN LEARN A LOT JUST FROM LISTENING• THE BEST EMPLOYEE FINDS SOLUTIONS TO THE OBVIOUS• PROVIDE CLEAR FEEDBACK – SET EXPECTATIONS
EMPLOYEE DISCIPLINE PLAN AND PROPER DOCUMENTATION
• PROGRESSIVE DISCIPLINE – HANDBOOK • CONFIRM IN WRITING THE KEY PERFORMANCE RELATED ISSUES• DOCUMENTATION BECOME ESSENTIAL FOR EFFECTIVE FOLLOW-UP• CONSISTENCY IN THE DISCIPLINE
LEGAL VS. ILLEGAL REASONS FOR TERMINATION
• WRONGFUL TERMINATIONS• “AT-WILL”• FMLA – ADA-WORKERS’ COMP• TITLE VII CLAIMS
WHAT IS A “WRONGFUL TERMINATION”?
• ALMOST ALL TERMINATIONS ARE WRONGFUL • IS THE WRONGFUL TERMINATION ACTUALLY UNLAWFUL
THE “AT-WILL” DOCTRINE
• GENERALLY, ONE’S EMPLOYMENT IS TERMINAL AT WILL, WHICH MEANS THAT EITHER THE EMPLOYER OR THE EMPLOYEE HAS THE RIGHT TO TERMINATE THE EMPLOYMENT AT ANY TIME FOR ANY REASON OR NO REASON AT ALL WITHOUT LIABILITY TO THE OTHER FOR DOING SO.
EXCEPTION TO THE “AT-WILL” DOCTRINE
• PUBLIC POLICY EXCEPTIONS• REFUSAL TO VIOLATE A PUBLIC POLICY
• WAS THE EMPLOYEE DISCHARGED FOR REFUSING TO ACT IN VIOLATION OF AN ESTABLISHED AND WELL-DEFINED PUBLIC POLICY
• AN ACT FORBIDDEN BY LAW OR THE CONSTITUTION OR A STATUTE• ACT CONSISTENT WITH PUBLIC POLICY
• WAS THE EMPLOYEE DISCHARGED FOR PERFORMING AN ACT WITH A CLEAR AND COMPELLING PUBLIC POLICY
• EMPLOYMENT DISCRIMINATION
SETTING CLEAR EXPECTATIONS OF THE EMPLOYMENT RELATIONSHIP
TITLE VII CLAIMS
• CIVIL RIGHTS ACT OF 1964• FEDERAL LAW THAT PROHIBITS MOST WORKPLACE HARASSMENT AND
DISCRIMINATION• COVERS ALL PRIVATE EMPLOYERS, STATE AND LOCAL GOVERNMENTS
AND EDUCATIONAL INSTITUTIONS• MUST HAVE 15 OR MORE EMPLOYEES
TITLE VII PROVIDES PROTECTION FOR ….
• AN EMPLOYER IS PROHIBITED FROM DISCRIMINATING AGAINST A WORKER BECAUSE OF:• RACE• NATIONAL ORIGIN• RELIGION• SEX
TITLE VII ALSO PROVIDED PROTECTION TO…
• AN EMPLOYER IS PROHIBITED FROM DISCRIMINATING AGAINST A WORKER BECAUSE OF:• PREGNANCY• SEXUAL HARASSMENT
• QUID PRO QUO• HOSTILE WORK ENVIRONMENT
TITLE VII – THE PRIMA FACIE CASE
• PRIMA FACIE - ON ITS FACE• THE ESSENTIAL ELEMENTS OF THE PRIMA FACIE CASE
• MEMBER OF A PROTECTED CLASS• QUALIFIED FOR THE POSITION• ADVERSE EMPLOYMENT ACTION
TITLE VII – BURDEN SHIFTING
• AFTER ESTABLISHING A PRIMA FACIE CASE THE BURDEN SHIFTS• EMPLOYER MUST SHOW THE ACTION TAKEN AGAINST THE EMPLOYEE
WAS FOR A LEGITIMATE NON-DISCRIMINATORY REASON – RELATIVELY EASY
• EMPLOYEE MUST SHOW THE PROFFERED REASON IS A PRETEXT
RETALIATION CLAIMS AND EMPLOYEE DISCIPLINE
• WHAT IS RETALIATION?• AFTER ENGAGING IN A PROTECTED ACTION, AN EMPLOYEE ENGAGED IN AN
ADVERSE ACTION AGAINST THE EMPLOYEE• PROTECTED ACTIONS INCLUDE:
• SUBMITTING A CHARGE OF DISCRIMINATION TO THE EEOC• COMPLAINING ABOUT ILLEGAL ACTIONS IN THE WORKPLACE• COMPLAINING ABOUT HARASSMENT IN THE WORKPLACE
RETALIATION CLAIMS AND EMPLOYEE DISCIPLINE
• SOMETIMES THE RETALIATION CLAIM IS EASIER TO PROVE THAN THE UNDERLYING DISCRIMINATION CLAIM
• TEMPORAL PROXIMITY REQUIREMENT
NEGOTIATING SEVERANCE PACKAGES
• REDUCTION IN FORCE• COMPANY POLICY• MOST SEVERANCE AGREEMENTS RECOGNIZE ONE’S CONTRIBUTION TO
THE COMPANY• RELEASE OF CLAIMS • FORMALIZE THE AGREEMENT IN WRITING
COMPLIANCE EXIT INTERVIEWS: DOCUMENTS AND DISCLAIMERS
• EXIT INTERVIEWS IN GENERAL• MAY OR MAY NOT PROVIDE VALUABLE INFORMATION• IMPORTANT ROLE FOR RISK MANAGEMENT – IS THERE HIGH TURNOVER IN KEY
POSITIONS• MANDATED OR REQUIRED COMPLIANCE• COMPANY POLICY – A DEBRIEFING • ADEQUATE TRAINING • IS THE EMPLOYER ADEQUATELY TRAINING ON COMPLIANCE ISSUES
CLOSING ARGUMENT