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Andrea Shindlebower Main Kentucky League of Cities February 2014.

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1 Andrea Shindlebower Main Kentucky League of Cities February 2014

2 Discharge of Employee - Important to Note It 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.

3 Documentation, Discipline and Discharge At-Will Employee What does is mean? What are the limitations? Prevention Proactive strategies to help prevent the need for discipline and discharge Documentation Who, What, Where, When, How & Why Discharge Process Before, During and After

4 Employment At Will – What does it mean? Employment at Will Employer 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 Work Being too attractive Wearing Green Bay Packers Tie *Disclaimer we do not recommend using these reasons

5 Employment At Will- Limitations Employment at Will is Limited Federal, state and local laws can limit at-will terminations Federal Laws: Title VII of the Civil Rights Act Protects against discrimination based on: Race Gender National origin Color Religion Age (over 40) Disability Military Status

6 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 termination Recruiting, Selection, and Hiring Training Classification, Assignment and Transfer Compensation, including fringe benefits Work Environment Promotion and demotion Discipline Any other aspect of employment constituting a term or condition.

7 Employment At Will – Limitations Employment at Will is Limited (cont.) State Law: Kentucky Civil Rights Act – KRS 344 Same 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

8 Specific Federal and State Law – Limitations Age Discrimination in Employment Act Age 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.

9 Specific Federal and State Law – Limitations Age Discrimination (ADEA) (cont.) Lay off If 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.

10 Specific Federal and State Law – Limitations Pregnancy 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.

11 Specific Federal and State Law – Limitations Pregnancy Discrimination Act (cont.) Cannot terminate an employee based on the fact that they cannot perform a job due to the pregnancy If no accommodation available they would be entitled to leave based on your personnel policies OR past practice FMLA – 50 or more employees PTO Unpaid leave Employer cannot move pregnant employee to another position because of the employers safety concerns. Employee can voluntarily request to be moved Employer would accommodate as they would any other employee with a temporary disability

12 Specific Federal and State Law – Limitations ADA (Americans with Disabilities Act) Protects employees with a disability that are qualified to do a job with or without a reasonable accommodation Under the ADA, an employee has a disability if they have a physical or mental impairment that substantially limits a major life activity Major 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.

13 Specific Federal and State Law – Limitations ADA (Americans with Disabilities Act) The ADA also protects employees that have a history of a disability Or if an employer believes that an employee has a disability An 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.

14 Specific Federal and State Law – Limitations ADA (Americans with Disabilities Act cont.) Cannot termination a person with a disability because they can no longer perform a job Reasonable Accommodations A 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.

15 Specific Federal and State Law – Limitations ADA (Americans with Disabilities Act cont.) Reasonable Accommodations – Undue Hardship The 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.

16 Specific Federal and State Law – Limitations Are 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 TTY to 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.

17 Specific Federal and State Law – Limitations USERRA Cannot 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.

18 Specific Federal and State Law – Limitations USERRA - FYI Requires reemployment of individuals with no loss of pay, seniority, or other benefits. o Five conditions of reemployment 1. Must have a civilian job 2. Must provide written or verbal notice prior to leaving 3. Must not exceed the 5 cumulative years of service o Exceptions to the 5 year rule: o Unable to obtain release from service o Required drills and annual training and other training duty certified by the military o Service performed during national emergency or time of war – includes voluntary and involuntary service 4. Must be released from service under conditions other than dishonorable 5. Must report back to the civilian job in a timely manner or submit a timely application for reemployment.

19 Employment At Will – Limitations Employment at Will is Limited (cont.) Local Laws Fairness ordinances Sexual Orientation and Marital Status Morehead, Vicco, Covington, Lexington, Louisville Local ordinance limiting action to “for cause” or “good cause.” Implies a fair and honest reason for terminating an employee Mayor / Council form – Mayor still has ultimate authority to remove

20 Employment At Will – Limitations City Specific Issues by State Law Police and Fire (KRS 95 and KRS 15) Hearing process Non-elected officers (KRS 83A.080) Written Reason for Dismissal City Managers (KRS 83A.150) Hearing process Urban County Governments (KRS 67A.280) Hearing process Civil Service System (KRS 90) Hearing process

21 Employment At Will – Limitations City 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 insurance Less 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.

22 Employment At Will – Limitations However 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

23 Employment At Will – Limitations Questions about employment at will or the limitations?

24 An Ounce of Prevention – Proactive instead of Reactive How do you become proactive instead of reactive? Treat all employees with: Dignity Respect Courtesy Fairness

25 An Ounce of Prevention – Proactive instead of Reactive Poor employee relations can result in the need for disciplinary measures as they can cause: Absenteeism Poor Performance Low Morale Turnover Litigation

26 An Ounce of Prevention – Proactive instead of Reactive What else can you do that is proactive? Determine major job duties Clear job descriptions Make sure they are current – update frequently Define Performance Standards To 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 expectations Provide an orientation or on boarding program for new employees Review job descriptions and performance standards with employees Have written policies and procedures regarding rules – and review them with employees

27 An Ounce of Prevention – Proactive instead of Reactive What else can you do that is proactive? (cont.) Establish a climate of communication Open door policy Provide ongoing coaching and feedback How well are they doing? What can they do to improve? Document job performance The good and the bad Evaluate job performance Annually – bi annually – follow policy Provide effective training & resources

28 An Ounce of Prevention – Proactive instead of Reactive Questions or comments about being proactive?

29 Progressive Discipline - Principles Four Principles Surrounding Effective Discipline Corrective Fair Consistent Progressive

30 Progressive Discipline - Definition Progressive 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 situation Similar situation Serious situation Series of situations - bundling

31 Progressive Discipline - Goals Goals of Progressive Discipline Correct undesirable conduct, rather than to simply punish; Communicate problem issues directly and in a timely fashion; Include employees in the problem solving process;

32 Progressive Discipline - Goals Goals 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

33 Progressive Discipline - Steps Progressive Discipline Steps Coaching / Review Expectations Verbal Reprimand Written Reprimand Suspension Termination What is set out in your city policies!

34 Progressive Discipline - Steps Step 1 – Coaching What is the goal of coaching? Reestablish Expectations Resolve the problem before it progresses any further Address minor infractions before they come major infractions Establish two way communications Clearly identify the substandard performance or behavior

35 Progressive Discipline - Steps Step 2- Verbal Reprimand What is the Goal? Informal communication to the employee about an issue Discussions need to include: Specific incident Time and place of the incident Effects of the incident Set expectations Possible consequences Follow the verbal reprimand with a confirming memo

36 Progressive Discipline - Steps Step 3 – Written Reprimand What is the goal? Last chance agreement Lets the employee know that a breach of a final written warning could or will result in discharge A final warning offers few alternatives Specifics on documenting written reprimands is addressed in the next section

37 Progressive Discipline - Steps Step 4- Suspension Goal of suspension? Used to investigate the facts Provides “breathing space” to deal with what appears to be serious misconduct Allows time for consultation with higher levels of authority who are not readily available Never terminate on the spot even if employee has seemingly made a dischargeable offense, instead investigate Collect evidence from both sides of the story and get the board of commissioners and the city attorney involved Investigate within hours of the incident

38 Progressive Discipline - Steps Step 4- Suspension (cont.) Review past practice. Make sure that other employees have been treated in the same way in other similar circumstances Suspension is the last means of corrective action prior to termination Normal length of suspension should not exceed 3 working days However, there may be times where longer or shorter suspensions will occur Read your policy regarding pay during suspension If unpaid and employee found to be “innocent” they need to receive “back pay” for the time they were suspended without pay.

39 Progressive Discipline - Steps Step 4- Suspension (cont.) Basics of Suspension Letter A suspension letter should include: Review of past disciplinary action, if any Policy regarding suspension Specific reason for suspension Expected behavior or performance That suspension is their last warning Further violation may result in discharge The length of suspension The date and time employee is to resume work

40 Progressive Discipline - Questions? Questions about progressive discipline?

41 Documentation – What Actions Call for Documentation? Documentation What employment actions call for documentation? Mid-year and or annual performance reviews Violation of city policy, procedure, practice, or code of ethics Attendance issues Poor performance Demotions Promotions Change in job duties Training needs and accomplishments Merit increase decisions based on performance

42 Documentation Details When to begin? Documentation When should you begin formal documentation? Assess each instance on a case by case basis, but be consistent Depends on the severity of the behavior, frequency, prior coaching or counseling, and employees intent For example an employee is late one time … For example if an employee punches a coworker …

43 Documentation – Goals Documentation What is the goal of documentation? To create a record of employment history Why is documentation so important? It establishes a record of employment actions taken and the reasons for the actions Memories fail If promotion or termination occurs you need something to back it up! Informs employees of what is expected of them and the consequences if they don’t meet expectations Employees should never be surprised when they are in a termination meeting

44 Documentation – Importance Documentation Why 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 improve Or advises the employee that they are on the right path It serves as evidence for actions taken, in the event the employee takes formal or informal steps with a claim against the city It assures fair and equitable treatment to all employees

45 Documentation – What if there is no documentation? Documentation What are implications of not documenting? Performance or behavior doesn’t improve Negative impacts on the city, as well as employee morale, and eventually the managers own performance Increased frustration Managers / Department Heads Co-workers

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

47 Documentation Who is Responsible? Documentation What documentation is supervisor/manager responsibility? Handwritten or typed notes from coaching or counseling sessions with employees. Written comments including specific examples in performance reviews Disciplinary actions Warning documents with specific examples and consequences Business reasons for employment actions Demotions Promotions Layoffs

48 When to Consult? When to consult with city attorney (cont.) Demotions Promotions Work/life balancing matters Telecommuting Flex schedule Harassment claims Final written warning Egregious code of ethics or personnel policy violations Layoffs Terminations

49 When to Consult? When to consult with city attorney Request of an accommodation – religious and medical What are the essential functions of the job? Job description Before terminating employee that is on FMLA or Workers’ Comp Could it be considered retaliation for FMLA request or for being on workers’ comp? Significant changes to job duties Job description

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

51 Documentation – Investigation Documentation Do investigate each incident regardless of how it first appears Select an appropriate time and place to meet with the employee privately Document Allow the employee to explain Listen and respond in a calm manner Confer 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.

52 Documentation – Investigation What to consider when investigating Facts surrounding the incident Seriousness of the infraction Was the employee informed of the work rules Have they been previously advised, coached or warned about the issue The degree to which the action hampers the city’s mission or day to day operation Any 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

53 Documentation – How to Document How to document Follow the city policy Start early Make it a habit to discuss all employees’ performance with the employee continuously as part of the performance management process. Include positive and negative feedback Tell employees in advance what is expected (on boarding or new employee orientation)

54 Documentation – How to Document How to document (cont.) Don’t wait hoping the issues will improve They usually won’t Document only the facts Not subjective thoughts or conclusions Subjective example – Your typing error rate is too high You need to improve your customer service skills Do any of these statements set expectations? Objective examples – You are averaging 40 wpm while the departmental average for admins is 55 wpm I expect to receive zero customer service complaints over the next 30 days Quantify!

55 Documentation – How to Document Documentation Good documentation answers these questions: Who Was/Is involved and their position Are there any witnesses? What Describe the incident What rule or policy was violated? Where Was it on the city property? When Did it occur during work hours? Off duty? Not why unless the employee gives their own explanation

56 Documentation – How to Document How to document (cont.) Use city warning letter template Describe the specific behavior or actions Use verbs Do not add comments, insights or interpretations Include a statement of the policy, procedure, ethics violation or rule that was violated Include the actual or potential consequences of the offense In addition to the discipline include: Burden on coworkers Possible hazards from the conduct Contribution to lack of harmony and cooperation among coworkers Costs to the city - lawsuits

57 Documentation – How to Document How to document (cont.) Include the outcome that is expected Work Improvement Plan Follow-up date for a meeting Depending on the type of improvement that is required Usually days “Failure to improve as outlined in this letter by xyz date may result in further disciplinary actions, including termination.”

58 Documentation – How Should it Read? Documentation No 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?

59 Documentation – Formal Written Warning Formal written warnings Ask employee to sign indicating that they had the discussion received a copy and understood the document Formal Written Warning What if they refuse to sign? Allow them to write a response and attach to the documentation Have third party come in to witness it was done

60 Documentation – Formal Written Warning How 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?

61 Documentation – Formal Written Warning How to document (cont.) - What was missing from the documentation on the previous slide? Needs specific dates of tardiness and the exact times Include references as to how this effects other employees They are having to pick up the slack when they are late and they are resentful Bad for morale because it is unfair that you can be late without consequences and they get to work on time every day Need an action plan Have the employee assist in coming up with the action plan – Can get up earlier Can lay out clothes the night before Change in hours Need consequences for not following through with action plan If employee is late one more time in the next 30 days they will be terminated Need a follow up date 30 days – February 12, 2014 Signatures Employee Supervisor

62 Documentation – Formal Written Warning Formal written warnings (cont) Give a copy to board of commissioners Place in Personnel File Document the discussion from the meeting in writing Discuss any issues with Board of Commissioners / City Attorney Sample

63 Documentation – Formal Written Warning Sample Sample Letter – Written Warning (On City Letterhead) Hand Delivered Date Employee Name Home Address City, Province, Postal Code Dear 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…

64 Documentation – Formal Written Warning Sample Sample 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, Signature Manager’s Name cc. Employee File I 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

65 Documentation – Summary REMEMBER: Documentation is important for both the employee and the employer Good documentation answers the questions Who, What, When and Where Document Early. Don’t wait!

66 Documentation – Summary REMEMBER(cont.): Discussions without documentation only equals misunderstandings Discuss and document only the facts Give specific examples on what the employee has done wrong and on ways they can improve Always consult with your attorney on matters concerning FMLA, ADA, harassment claims, final warnings and definitely before termination Ask employee to sign documentation of disciplinary actions

67 Documentation – Questions Questions about documentation?

68 Discharge – Pre-termination Checklist Now what? Follow your pre-termination checklist Make sure all bases are covered Sample – next slides

69 Discharge Sample Pre-Termination Checklist Documentation Pre 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 employee’s 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.

70 Discharge Sample Pre-Termination Checklist Documentation Pre 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 employee’s 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.

71 Discharge Sample Pre-Termination Checklist Documentation Pre 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 employee’s 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 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.

72 Discharge – Guidelines for the Termination Meeting Before 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.

73 Discharge – Guidelines for the Termination Meeting During 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.

74 Discharge – Guidelines for the Termination Meeting During 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 employee’s 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.

75 Discharge – Guidelines for the Termination Meeting During 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, keys Provide 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.

76 Discharge – Guidelines for the Termination Meeting After the termination meeting: Permissions, privileges and 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 employee’s residence.

77 Discharge – Practical Advice / After the Termination Post-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.

78 Discharge – Practical Advice Below 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 you’re 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: "It’s 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.

79 Discharge – What Now? After they are gone Break the silence It 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 manner When discussing the termination with current employees, managers should be brief, general and respectful of the dismissed employee’s 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 employee’s 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.

80 Discharge – What Now? Termination based on performance problems Usually this is not a surprise (if handled correctly) to other employees Make a generic statement that the person is no longer with the city Discuss action plan to replace as quickly as possible and who will handle their job duties until that occurs

81 Discharge – What Now? Termination based on egregious misconduct Examples include harassment, theft of city property, or physical violence Call a meeting to let employees know that the employee is no longer with the city Let 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 employee Discuss action plan to replace as quickly as possible and who will handle their job duties until that occurs Let them know who external inquiries should go to

82 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 respect Call a meeting with the employees to briefly acknowledge what has happened Focus on the fact that there are no further plans to lay off End the meeting with an action plan Who will handle the responsibilities of the person(s) let go

83 Documentation, Discipline & Discharge Questions??


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