1. Positive Employee Relations
J. Bruce Cross
Cross, Gunter, Witherspoon & Galchus, P.C.
500 President Clinton Avenue, Suite 200
Little Rock, Arkansas 72201

2. Top Mistakes Made by Employers
SELECTION PROCESS
IMMIGRATION ISSUES
NOT KNOWING THE LAWS TO WHICH YOU ARE SUBJECT
PROTECTING AGAINST RETALIATION CLAIMS
HARASSMENT PREVENTION
DISCIPLINE, TERMINATION, & DOCUMENTATION

3. SELECTION PROCESS

4. THE SELECTION PROCESS– INTERVIEWING/HIRING/PROMOTI

5. THE LEGAL ENVIRONMENT
Legal protection against discrimination based on race, color, sex, age, national origin and religion have to be considered in the selection phase.
Also, the Americans with Disabilities Act prohibits inquiries into disabilities or perceived disabilities.

6. TOOLS FOR CREATING THE PROPER SELECTION PROCEDURES
Job Applications
Interviews
Reference Checks

7. GETTING THE DATA YOU NEED
JOB APPLICATIONS:
GETTING THE DATA YOU NEED

8. ONLINE VS. PAPER APPLICATION PROCESS

9. ONLINE BETTER AS GIVES ADDITIONAL MEANS TO LEGALLY ELIMINATE CANDIDATES THROUGH USE OF “BASIC QUALIFICATIONS”

10. EXAMPLES OF “BASIC QUALIFICATIONS”:
Engineering Degree
3 years of work experience as an Electrical Engineer

11. Special Rules for Internet Applicants
The Internet Applicant Rule:
Must ask all “Internet applicants” who meet the “basic qualifications” for a job to identify their race, ethnicity, and gender.
Must maintain all “expressions of interest” made through the Internet or related electronic data technologies

12. Special Rules for Internet Applicants
Definition of “Internet Applicant:”
Expresses an interest through Internet or related technology
Considered for employment in particular position
Indicates that he or she has “basic qualifications”
Does not remove himself or herself from further consideration

13. Special Rules for Internet Applicants
Internet related technologies include:
Resume databases
Job banks
Electronic scanning technology
Applicant tracking systems
Applicant screeners

14. Proper Procedures
Decide minimum qualifications (plus basic qualifications if using an online system)
Outside Applicants?
Post any vacancy
Do not accept internal applications from employees who do not meet the “basic qualifications” if using online system
Review personnel files of internal applicants

15. Proper Procedures Select most qualified applicant
Identify race and sex of the qualified pool of applicants
Advertise openings in media that is available to minorities and women
Do not fill a job vacancy until the application period is closed

16. Tools for Creating the Proper Hiring Procedure
The Interview

17. The Interview Should Focus Upon:
Job Responsibilities
Environmental Factors
Personal Characteristics
Physical Requirements

18. USE THE JOB DESCRIPTION TO ASSIST YOU IN FOCUSING ON THE ABOVE ELEMENTS!

19. QUESTIONS TO AVOID Race, national origin, religion, or age
Marital and family status ‑ including child care problems
Contraceptive practices
Plans to have children
Height or weight
Disabilities

20. QUESTIONS TO AVOID Friends or relatives working for your company
Arrest records
The applicant’s credit rating or other financial data
Home ownership

21. THE INTERVIEW You need to control the interview:
Allow applicant to talk but be prepared to cut them off if rambling. Time is valuable.
Since candidates are pre-screened by Human Resources, need not probe deeply into extraneous areas.

22. THE INTERVIEW A Conversation with a Purpose Job Responsibilities
Environmental Factors
Personal Characteristics
Physical Requirements

23. Common Interviewing Errors

24. You should listen more than talk!
TALKING TOO MUCH
The interviewer should only talk about 25% of the time.
Your primary goal is to get to know the applicant and determine if the individual has the skills to do the job.
Remember:
You should listen more than talk!

25. THE “HALO EFFECT”
This is the tendency to see applicants as all good or all bad based on an outstanding trait.
For example, when an articulate applicant is well liked because of his/her communication skills, we often assume that his/her unrelated skills are equally strong.

26. FIRST IMPRESSIONS
Interviewers frequently base final decisions on superficial first impressions rather than a thorough analysis of the applicant’s ability to do the job.

27. PERSONAL BIAS
Be aware of your biases and focus on specific past performance and the qualifications for the job as the basis for your selection decision.

28. “SIMILAR TO ME”
Interviewers have a tendency to be partial to applicants who are similar to themselves.
REMEMBER:
You are interviewing for someone to work for you. You are not interviewing for someone to be your friend or to “hang out with!”

29. TELEGRAPHING
The interviewer communicates early in the interview, either verbally or non-verbally, what he/she wants in a new employee.
The perceptive applicant simply repeats this back to the interviewer and appears to be a perfect fit.

30. ASKING “WHAT IF” QUESTIONS
Hypothetical questions lead to theoretical answers. Applicants good on theory are not necessarily good on follow-through.
Theoretical questions: use words like: “would do,” “going to,” etc.
Behavioral questions: use words like, “did,” “have done,” “currently doing,” etc.

31. ASKING INAPPROPRIATE QUESTIONS
Questions relating to an applicant’s race, religion, sex, national origin, disability or veteran status, or age are inappropriate unless the employer can prove that the information is job-related.

32. CONTRAST EFFECTS
If an interviewer talks with three poor applicants in a row, a mediocre applicant following these three may get undeservedly high ratings.
When evaluating applicants, refer back to the job requirements as your standard, not just other applicants.

33. REMEMBER : Your goal in the interview: Determining who is the best candidate to perform the essential functions of the job. Thus, which candidate has the necessary/best skills and knowledge to do that job.

34. PROPER SELECTION PROCEDURE
TOOLS FOR CREATING THE
PROPER SELECTION PROCEDURE
SCREENING REFERENCES

35. Arkansas Reference Act
A.C.A. §
Provides current and former employers with protection for providing job information
Allows a current or former employer to disclose certain information about the employee provided that it obtains consent from the employee in writing.

36. Arkansas Reference Act
Allows a current or former employer to disclose the following information:
Date and duration of employment
Current pay rate and wage history
Job description and duties
Last written performance evaluation
Attendance information

37. Arkansas Reference Act
Results of drug or alcohol tests administered within one year
Threats of violence or harassing acts
Whether employee was voluntarily or involuntarily separated from employment, and the reasons for separation

38. Arkansas Reference Act
Whether the employee is eligible for rehire

39. Proper Procedures
Review all applications, interview notes, and reference checks
Identify applicants who do not meet the “basic” and minimum qualifications and do not consider further

41. Immigration Issues Independent Contractors Legislation I-9s
Social Security No Match Letter

42. NOT KNOWING THE LAWS TO WHICH YOU ARE SUBJECT

43. General Employment Laws
Title VII
42 U.S.C. § 1981
Arkansas Civil Rights Act
Age Discrimination in Employment Act
Equal Pay Act
Americans with Disabilities Act (ADA)
Family and Medical Leave Act (FMLA)
National Labor Relations Act
Uniformed Service Employment and Reemployment Act (USERRA)
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44. Title VII
Title VII prohibits discrimination on the basis of race, color, religion, sex, pregnancy or national origin
Title VII applies to all employers who are engaged in interstate commerce and have 15 or more employees
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45. Title VII Provides for “make whole” remedies Remedies
Back Pay
Front Pay
Attorney’s Fees
Compensatory and Punitive Damages
Injunctive Relief
Injunctions may range from order of reinstatement to general order not to discriminate
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46. 42 U.S.C. §1981
Coverage:
All private employers regardless of the number of employees
Applies to all aspects of employment
Protection:
Racial discrimination
Does not apply to sexual or religious discrimination
Does not apply to national origin discrimination, but it may apply to questions of alienage
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47. 42 U.S.C. §1981 Remedies Back Pay Front Pay Attorney’s Fees
Compensatory & Punitive Damages
Injunctive Relief
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48. Arkansas Civil Rights Act
Coverage
Companies with fewer employees than Title VII (9)
Protection
Prohibits discrimination on the basis of race, religion, ancestry, or national origin, gender, or the presence of any sensory, mental or physical disability
Supervisor individual liability?
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49. Arkansas Civil Rights Act
Remedies
Affirmative Relief
Back pay
Interest
Costs
Attorney Fees
Compensatory and punitive damages
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50. Some Differences Between Arkansas CRA and Title VII
Go directly into Court
No requirement to exhaust administrative remedies
May allow one year to file suit under State CRA vs. 90 days under Title VII
Greater damage potential under Title VII
Federal – 15 employee minimum; State CRA allows much lower employee minimum
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51. Age Discrimination in Employment Act
The ADEA prohibits discrimination on the basis of age. It applies to individuals 40 years of age and older.
The ADEA applies to employers engaged in interstate commerce with 20 or more employees.
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52. Age Discrimination in Employment Act
Under this act, it is unlawful to force an employee to retire, and it is also unlawful to give preference because of age to one person over another, even if they are both in the protected age group.
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53. Equal Pay Act Coverage Protection
Prohibits wage differentials based on sex
Protection
Requires equal pay for male or female employees who are performing work that is substantially equal in skill, effort & responsibility & is performed under similar working conditions
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54. Equal Pay Act Remedies Wages lost Liquidated damages Attorney’s fees
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55. American with Disabilities Act GENERAL RULE
An employer shall not, because of a disability, discriminate with regard to any term or condition of employment against a qualified individual with a disability who can, with or without reasonable accommodation, perform the essential functions of the job, unless such accommodation would create an undue hardship or constitute a direct threat to safety.

56. ADA
A qualified individual with a disability is someone who can perform the essential functions of the job with or without reasonable accommodation

57. WHO IS PROTECTED? Qualified individual With a record of a disability,
With a disability,
With a record of a disability,
Regarded as being disabled, or
Associated with a person with a disability.

58. QUALIFIED INDIVIDUAL
Meets experience and educational qualifications for the job, and
Can perform essential functions of job
With or without a reasonable accommodation, and
Is not a direct threat.

59. RIGHTS AND REMEDIES UNDER THE ADA
Back pay
Reinstatement;
Promotion and hiring; and
Attorney’s fees.

60. Management’s Responsibilities
Certain steps are key in accommodating an employee with a disability. The most important thing for a manager to remember is that he/she must contact Human Resources or your equivalent person for any ADA/related decisions – not only for consistency, but to ensure compliance with the law.
If an employee requests an accommodation, or doctor places restrictions on an employee and he/she is unable to perform an essential function(s) of the job, a manager’s first step is to contact HR.

61. Management’s Responsibilities (con’t)
Human Resources will work with the manager and the individual with a disability to determine the precise job-related limitations. Management should also ask the employee if there are any accommodation requests that he/she would like to suggest for consideration.

62. Management’s Responsibilities (con’t)
Human Resources will determine what assistance is available to accommodate the employee.
Once accommodation alternatives are researched, the Company will look at possible accommodations and agree on the accommodations most appropriate for the employee and the Company, if any.

63. Family and Medical Leave Act
Covered employers must provide a worker with up to 12 weeks of unpaid leave during any 12-month period for the following events:
For the birth of a son or daughter, and to care for the newborn child;
For placement with the employee of a son or daughter for adoption or foster care;
To care for the employee’s spouse, son, daughter or parent with a serious health condition;
Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job;

64. Family and Medical Leave Act (Con’t)
Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter or parent is a covered military member on active duty (or has been notified of an impending call or order to active duty) in support of a continuing operation; and
To care for a covered service member with a serious injury or illness if the employee is the spouse, son, daughter, parent or next of kin of the service member.

65. Covered Employees ADA: All employees
FMLA: Employed 12 months, worked 1250 hours in previous 12 months
50 or more employees within a 75 mile radius

66. Covered Injuries ADA: Disability
FMLA: Serious Health Condition/Military Injuries

67. National Labor Relations Act
Protects employee rights to organize
To engage in Union activity & collectively bargain
Strong language to protect employees
Cannot discriminate
Does not only apply to Union activities

68. Uniformed Services Employment and Reemployment Rights Act (USERRA)
Employer may not refuse an employee’s military leave of absence or discriminate with regard to employment or reemployment based on military service.
Protects employees who have been absent from a position of employment as a result of “service in the uniformed services.”

69. Anti-Discrimination In Employment Laws
The heart of the anti-discrimination laws is Title VII of the Civil Rights Act which provides that an employer may not discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of the individual’s race, color religion, sex or national origin.

70. Anti-Discrimination in Employment Laws
Applicants for employment are also protected, as well as persons who are actually hired.
While Title VII clearly prohibits overt, intentional discrimination (“disparate treatment”) it also prohibits employment practices that are “fair in form but discriminatory in operation”, frequently referred to as “disparate impact”.

71. Enforcement by the EEOC
Title VII, along with the Age Discrimination and Employment Act which provides protection for workers forty (40) years of age and older, the Americans with Disabilities Act which provides protection for persons with a disability and the Equal Pay Act are administered and enforced by the Equal Employment Opportunity Commission (“EEOC”). The EEOC investigates all charges of discrimination, and, where appropriate, seeks a voluntary settlement of the discriminatory practice, dismisses the charge, or makes a finding that discrimination has occurred.

72. Enforcement by the EEOC
To pursue a claim of discrimination in Arkansas, an individual must file a charge with the EEOC within 180 days of the alleged discriminatory act, or it will be deemed untimely.

73. Enforcement by the EEOC
Before a person may obtain judicial relief in the form of a lawsuit based on the alleged discriminatory practices, the person must obtain a Notice of Right to Sue from the EEOC. The individual must then file a lawsuit in federal court within 90 days of the receipt of the Right to Sue letter.

74. Enforcement by the EEOC
The processing of a grievance with an employer will not suspend the time period for filing an EEOC Charge.

75. EEOC Charges
In Arkansas, charges must be filed with the EEOC within 180 days of the alleged discriminatory act, or it will be deemed untimely.
EEOC will subsequently serve a copy of the charge on the employer
If no mediation, then the Employer provides a position statement.

76. EEOC Charges
Before a lawsuit, the person must obtain a Notice of Right to Sue from the EEOC
The individual must then file a lawsuit in federal court within 90 days of the receipt of the Right to Sue letter.

77. PROTECTING AGAINST
RETALIATION CLAIMS

78. 42 U.S.C. § 2000e-3 – Retaliation Law
“It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership . . .”

79. 42 U.S.C. § 2000e-3 – Retaliation Law
…because he has opposed any practice made an unlawful employment practice by this subchapter, or
…because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”

80. How is a violation demonstrated?
Prima facie case:
Basis:
plaintiff engaged in protected activity
Issue:
“adverse employment action” imposed
Causal connection:
adverse employment action taken because of protected activity

81. Participation under Title VII
Participation is broadly construed and covers all aspects of communicating (or refusing to communicate) allegations or evidence to a civil rights enforcement agency or an internal complaint investigatory procedure.

82. Adverse Employment Action
What is it? Some examples:
termination
suspension
reduction in hours
reduction in pay or denial of a raise
placement on involuntary unpaid maternity leave
negative statements about an employee
filing criminal charges
false police report
refusal to rehire

83. Adverse Employment Action
What is it not? Some examples:
barring terminated employees from using company facilities to find a new job
contesting unemployment compensation
engaging in reasonable protective measures to defend against the employee’s claims

84. Causal Connection
The plaintiff typically may establish a causal connection by proving:
Order – that the protected activity preceded the adverse action; and
Employer knowledge – that the employer was aware of the plaintiff’s protected participation or opposition before taking the adverse action.

85. Causal Connection
Key question: How much time passed between the protected activity and the adverse employment action?
Burden on plaintiff to prove the defendant-employer’s non-retaliatory reason for the adverse employment action was pre-textual

86. Causal Connection Some non-retaliatory reasons: insubordination
refusal to perform assigned work
falsifying information
poor relationships with other employees
violence directed toward a co-worker
poor work performance
lack of job qualifications
the existence of more qualified applicants
departmental reorganization
unprotected forms of participation or opposition

87. Internal Complaints
Every employer should have at a minimum an open door policy or practice in order to reduce the potential for liability.
This policy/practice allows employees to talk to their supervisor or Human Resources about workplace issues.

88. Internal Complaints Discrimination Workplace Violence and Harassment
For serious complaints such as these, an established, well-publicized policy provides a structure for the employee to communicate these serious issues with the confidence that the complaints will be taken seriously and given the consideration they deserve.

89. HARASSMENT PREVENTION

90. SEXUAL HARASSMENT
Title VII – It shall be an unlawful employment practice for an employer to fail or refuse to hire an applicant or to discharge, or discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment because of such individual’s . . .
Race, color, religion, sex, national origin.
Other statutes include age & disability
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91. DEFINITION CHANGED
Initially, sexual harassment was defined as a demand for sexual favors to obtain or retain a job benefit.
Now expanded to include any imposition of an unwanted condition of employment because of that person’s sex.
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92. THREE CATEGORIES: Elements Quid Pro Quo
Acts of gender-based animosity.
Sexually hostile environment.
Elements
Based upon protected status
Unwelcome
Severe and Pervasive
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93. A HOSTILE WORK ENVIRONMENT CAN INCLUDE:
PORNOGRAPHIC MAGAZINES;
WHAT IS PORNOGRAPHIC?
HUSTLER?
PENTHOUSE?

94. WHAT ABOUT COSMOPOLITAN?

96. GQ?

99. A HOSTILE WORK ENVIRONMENT CAN INCLUDE:
- Vulgar Employee Comments;
- Offensive Sexual Jokes;
- Comments on how Someone’s Clothing Fits or Looks, Physical Attributes, Etc.;
- Demeaning Comments;
- “Looks” or “Leering”

100. A HOSTILE WORK ENVIRONMENT CAN INCLUDE:
TOUCHING SOMEONE, INCLUDING “FRIENDLY” PATS, SQUEEZES OR PINCHES

102. WHAT ELEMENTS MUST BE SHOWN TO ESTABLISH A CASE OF HARASSMENT?
ESTABLISHING A CASE
WHAT ELEMENTS MUST BE SHOWN TO ESTABLISH A CASE OF HARASSMENT?

103. Elements to be Established
CONDUCT MUST BE:
- Unwelcome
- Based upon Protected Status
- Severe and Pervasive

104. - WHAT IS UNWELCOME?
- MUST THE PERSON SAY IT IS?

105. CONDUCT MUST BE BASED ON AN EMPLOYEE’S PROTECTED STATUS

106. BASED ON EMPLOYEE’S GENDER?
Does that mean:
Same sex harassment can occur?
If equal opportunity harasser, may not be liable?

107. Is this “based upon Protected status”?

108. CONDUCT MUST BE SEVERE AND PERVASIVE

109. WHAT IS SEVERE & PERVASIVE?
Totality of the Circumstances, Including Unreported Incidents.
Consider:
The Frequency of the Discriminatory Conduct; and
Its Severity; and
If Physically Threatening or Humiliating
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110. WHAT IS SEVERE & PERVASIVE?
Whether it interferes with employee’s work performance.
Must meet both:
A reasonable person would find it hostile or abusive; and
The victim perceived it as hostile or abusive.
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111. WHAT IS SEVERE & PERVASIVE?
Psychological injury not required
Sufficient that employee “felt afraid, intimidated, & anxious, & that those feelings had a detrimental impact on her psychological well-being & on her ability to perform her work”
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113. WHAT IS SEVERE & PERVASIVE?
Isolated incidents may suffice
If severe, a single act can suffice.

114. WHAT IS SEVERE & PERVASIVE?
Where remote in time, not sufficient.
Look at premeditation, setting, and physical nature of the acts.

115. WHEN IS THE EMPLOYER LIABLE FOR ACTIONS OF OTHERS?
Liability depends on whether harasser is:
Supervisor, and there has been a tangible adverse employment action taken; or
Supervisor, and there has been no tangible adverse employment action taken; or
Not a Supervisor.
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116. May not need to be in the direct chain of command of employee.
WHO IS A SUPERVISOR?
Any person who has the ability to take a tangible adverse employment action against another employee.
Any person with authority to affect the terms & conditions of employment.
May not need to be in the direct chain of command of employee.

117. WHAT IS A TAEA?
The Eighth Circuit held that a tangible adverse employment action is a tangible change in working conditions that produces a material employment disadvantage.
Termination, revocation in pay or benefits, and changes in employment that significantly affect an employee’s future career prospects meet this standard.

118. The Eighth Circuit has also held that a constructive discharge constituted a tangible adverse employment action.

119. WHEN IS THE EMPLOYER LIABLE FOR ACTIONS OF SUPERVISOR?
Liability for employer if:
Harassment by supervisor with immediate or higher authority and
There is a tangible adverse employment action.
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120. WHEN IS THE EMPLOYER LIABLE FOR ACTIONS OF SUPERVISOR?
Liability is presumed, but affirmative defense is available if:
Harassment by supervisor with immediate or higher authority; and
There is no tangible adverse employment action.
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121. WHAT MUST THE EMPLOYER DEMONSTRATE TO ESTABLISH AN AFFIRMATIVE DEFENSE?

122. AFFIRMATIVE DEFENSE
Employer exercised reasonable care to prevent & correct promptly any sexually harassing behavior;
and
Employee unreasonably failed to take advantage of preventive/corrective opportunities provided by employer or to avoid harm.
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123. WHEN IS THE EMPLOYER LIABLE FOR ACTIONS OF OTHERS?
No liability if . . .
Harasser is not a supervisor, and
There is no tangible adverse employment action,
Unless employee proves
employer had knowledge, and
failure to take action.
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124. EMPLOYER LIABILITY FOR RETALIATION
Retaliation is illegal and discriminatory when the employer takes an adverse employment action against an employee because that employee asserted a legal right or claim under a statute.

125. EMPLOYER LIABILITY FOR RETALIATION
Does not have to be “tangible” adverse employment action.
U. S. Supreme Court recently broadened the definition of what could constitute retaliatory behavior.

126. EMPLOYER LIABILITY FOR RETALIATION
Illegal even if the underlying claim of harassment is not proven

127. EMPLOYER OBLIGATION TO PREVENT HARASSMENT
Affirmative steps to take:
Develop and communicate a sexual harassment policy.
If no policy exists, a Company can not take advantage of the affirmative defense.
Tell all employees how to utilize the system.
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128. EMPLOYER’S OBLIGATION TO PREVENT HARASSMENT
Communicate the Policy to your employees. The Company can:
Post Policy.
Distribute to each employee.
Periodic reminders.
Repeat policy in meetings.

129. EMPLOYER’S OBLIGATION TO PREVENT HARASSMENT
Have employees acknowledge receipt of policy and/or attendance at meetings while policy and complaint process are discussed.

130. WHAT TO DO IF A COMPLAINT IS REGISTERED?

131. INVESTIGATIVE PROCESS
Investigation should be:
Promptly done
Thorough
Done neutrally (Do Not Pre-Judge!)

132. INVESTIGATIVE PROCESS
Conduct investigatory interviews with
The complaining employee;
All possible witnesses; and then
The alleged harasser.
Get signed statements if possible.
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134. Don’t Pre-Judge because:
Taints investigation thus eliminating use of the Affirmative Defense
Complainant could be lying!

135. INVESTIGATIVE PROCESS
REMEMBER:
You can’t try to “get even” with the complainant for making a complaint

136. SAMPLE QUESTIONS TO ASK DURING INVESTIGATION:
Who harassed whom?
What did each person involved do?
What did each person say?
When did the harassment happen?
Did this happen before and how?
Has any other employee been harassed? How? When?
What did the harassed employee want the employer to do?
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137. MISTAKES OFTEN MADE IN THE INVESTIGATION PROCESS:
Failure to conduct a prompt and effective investigation.
Failure to respect the employment rights of the alleged harasser.
Defamation of the target employee or others involved in the investigation.
Invasion of privacy when requesting and disclosing information about employees.

138. MISTAKES OFTEN MADE IN THE INVESTIGATION PROCESS:
Investigatory techniques that amount to false imprisonment or intentional infliction of emotional distress claims.

139. INVESTIGATIVE PROCESS
Treat the investigation as highly confidential, but do not make absolute assurances of confidentiality.

140. INVESTIGATIVE PROCESS
Inform complaining employee, witnesses and alleged harasser of anti-retaliation policy.
Encourage to report any perceived retaliation.
Inform complaining employee and alleged harasser of conclusions from investigation.
Take prompt corrective action . . .
To end harassment; and/or
To avoid perception of harassment or retaliation.

141. LIABILITY OF INDIVIDUAL SUPERVISORS
Assault
Putting another person in fear of offensive touching.
Battery
Offensive touching.
Intentional Infliction of Emotional Distress
Damages: Unlimited
Compensatory damages for emotional distress
Punitive damages
Under Arkansas Civil Rights Law?

142. DISCIPLINE, TERMINATION AND DOCUMENTATION

143. Insure consistency, fairness and provide protection to the Company
WHY IS IT IMPORTANT TO DISCIPLINE EMPLOYEES AND DOCUMENT SUCH ACTIONS?
Answer:
Insure consistency, fairness and provide protection to the Company

144. BASIC PRINCIPLES FOR ISSUANCE OF DISCIPLINE
Mandates Good Human Relations
Participative Management
Employee Involvement
Solicit Input
Listen
Patience
“Golden Rule”
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145. BASIC PRINCIPLES FOR ISSUANCE OF DISCIPLINE
Uniform and Consistent Application of Policies and Procedures
Good Communication – clear, concise directions
Learn how to say “I was wrong”

146. Employee Due Process Notion of basic fairness
Communication (notice) of behavior and job performance standards
Following procedures
A chance to be heard before action is taken
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147. Employee Due Process
Full and timely investigation and follow-up (plus cooling off period, too)
A graduated system of penalties
Unbiased review and an appeals process
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148. Employer Social Responsibility
To “salvage” employee
Better us than society
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149. Burden on Employer - Heavy
Burden of proof, heavy
Rules, policies, and discipline must be reasonable
Discipline applied uniformly and non-discriminately
Documentation – if it’s not written, it didn’t happen
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150. Employee Responsibilities
Maintenance of production/service standards – quality, quantity and priorities
Responsible use of working time – self and other employees
Cooperation with supervision and other employees
Respect for other employees and their property
Observance of safety and health rules
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151. Employee Responsibilities (continued)
Proper use and maintenance of company equipment and materials
Maintenance of attendance standards, including notification
Maintenance of housekeeping standards
Protection of confidential information

152. Supervisors and Managers Responsibilities
Ensure employees are provided with the fundamentals, tools, expectations, environment, and feedback to be successful.
Ensure employees are made aware of, and reinforce compliance to, company rules, regulations, and procedures.
Schedule, stage, and direct work activities and assignments and assess work performance and conduct.

153. Supervisors and Managers Responsibilities
Provide employees with work clarification and additional instruction when needed.
Provide assistance and resolution when a willingness to stop is demonstrated.
Conduct investigations into behavior/performance/conduct issues when necessary.
Keep written records of informal corrective actions, including improvement discussions and coaching sessions.

154. Supervisors and Managers Responsibilities
Maintain confidentiality of the investigation process and corrective actions.
Contact HR or the equivalent for assistance.

155. HR Representatives Responsibilities
HR is to provide guidance to managers and supervisors in the following ways:
1. Conducting an investigation into Conduct Guidelines and Performance violations when necessary and assess the need for implementing the corrective action process.
2. Assist managers and supervisors in implementing corrective actions.

156. EMPLOYMENT-AT-WILL
WHAT DOES THAT MEAN?

157. An employer can terminate an employee at any time, for any reason, with or without cause. Likewise, an employee can terminate the employment relationship at any time, with or without notice.

158. EXCEPTIONS TO EMPLOYMENT-AT-WILL
Statutory
Federal & State Laws
Judicial
Violation of Public Policy

159. IN ISSUING DISCIPLINE, THE FOLLOWING ELEMENTS MUST BE PRESENT:
1. A violation of a work rule/policy or a performance/behavioral problem. 2. A full and fair investigation into the situation that may lead to discipline 3. Consideration given to all mitigating factors prior to issuing discipline

160. 1ST ELEMENT: WORK RULE/POLICY
Is there a written rule/policy?
How was this employee informed of the written rule/policy?
If it is not written, how was the employee informed of it?
Is the rule/policy reasonable?

161. VIOLATION OF WORK RULE/POLICY OR PERFORMANCE/BEHAVIORAL PROBLEM
Can you prove that this employee:
1. Violated the work rule/policy
2. Engaged in the inappropriate behavior
3. Performed his/her job poorly

162. 2ND ELEMENT PROCEDURAL DUE PROCESS
Full and fair investigation (on Controverted matters!)
Did the Company make a full and complete investigation before a decision was made?
Did the employee have the opportunity to tell his/her side of the story?
Did the Company interview witnesses suggested by the employee before a decision was made?
Did the Company reasonably consider the employee’s side of the story?

163. CONSISTENCY & FAIRNESS
What was the discipline issued to other employees who engaged in the same rule/policy violation, misbehavior or poor performance?
Does the discipline in this case match the discipline in cases of other misbehavior, rule/policy violations, or performance problems of similar severity?

164. 3RD ELEMENT MITIGATING CIRCUMSTANCES
Length of service.
Previous disciplinary history.
Previous counseling.
Previous performance evaluations.
Seriousness of offense.
Cooperation of employee.
One-time violation v. course of conduct.
Problems in personal life.

165. What is the supervisor’s role?
Disciplinary Actions
What is the supervisor’s role?

166. Before Issuing Discipline
Conduct an Investigation
That includes:
1. Get Human Resources involved immediately!
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167. Before Issuing Discipline (continued)
2. Participate with Human Resources in the following:
a) Get the Employee’s side of the issue
Listen to the employee carefully
Document exactly what was said
Get written statement, if possible
Create accurate historical record
Documentation helps to prevent later fabrication
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168. Before Issuing Discipline (continued)
Talk to all other relevant witnesses and obtain statements
Prepare investigation report
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169. Preparation of Report/Recommendation
Consider the following facts in making a determination:
Ensure the employee’s misconduct/performance/behavior is supported by facts
Obtain necessary documentation
Mitigating circumstances?
Is employee aware of what Company expects?
Consistency of application
Prior work / disciplinary history
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170. Length of Investigation
Depends on Nature and Complexity of the Violation
Normally within 5 working days unless circumstances dictate otherwise.

171. Progressive Discipline
Appropriate in some instances, particularly for performance/attendance issues.
Advantages are:
Assures Due Process
Gives employee extra chance (“salvage employee”)
Adequately warns employee

172. Progressive Discipline
Factors in determining which corrective action to use:
Seriousness of the offense
Corrective Action History of employee

173. Issuance of Discipline
If discipline is warranted, make certain that it is given with a witness present.

174. Warning the Employee What a Warning Should Contain:
Specific examples of shortcomings or infractions
A clear understanding of the consequences
Specific recommendations to correct performance
A positive attitude from management
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175. WRITTEN WARNING
Date: ________________ It was reported to me that you are not doing your share of the work in the department. I realize that we all get slower with age and that you have had several health problems. However, you need to do your share of the work and not assign it to the younger employees. If your performance does not improve, we will need to talk again. Signed: I. M. Clueless Supervisor
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176. WRITTEN WARNING
Date: __________ I have observed that you are not processing amount of pipe expected by us. It is important that you improve your performance in this area, since it places a burden on other employees when your performance is below expectations. If your performance does not improve in 30 days, we will have to terminate your employment. Signed:______________________ Supervisor
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177. ANY DISCIPLINARY DISCUSSION MUST BE DONE WITH RESPECT!
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178. Disciplinary Discussions
Make sure you seek a commitment for improvement
State your expectations clearly
Request and obtain employee’s cooperation
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179. Making Documentation Effective
Do promptly while memories are fresh
Focus on important incidents and behaviors
Establish internal system to check for consistency - Keep a Log!
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180. Making Documentation Effective
Focus on job-related standards and behaviors
Reflect good faith attempts to salvage the employee
Take action to bridge past warnings

181. FINAL WARNING State specific conduct giving rise to discipline.
Reference previous counselings and discipline.
Warn next action will be termination.

182. TERMINATION Always suspend pending decision on termination.
Reference prior counseling and discipline.
State specific conduct giving rise to termination.
Articulate legitimate non-discriminatory reason for termination.

183. REMEMBER! UNLESS IT IS DOCUMENTED, IT DID NOT HAPPEN
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184. Steps of Insubordination
1. Order given
Clear
Concise
Direct
2. Repeat the order
Warning of discipline
3. Ask for explanation – communicate – Why?
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185. Steps of Insubordination (continued)
4. Repeat the order (Get a management witness)
Clear
Concise
Direct
Warning of discipline
5. Place on Administrative Leave.
6. Discipline and document the same
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