1. TERMINATION ISSUES JANUARY 2016 MICHELE PUIGGARI PUIGGARI AND ASSOCIATES CONSULTING 505-690-4052

2. GOALS ■Learn to Identify Issues ■Apply knowledge ■Understand and Act on your responsibilities as a manager/supervisor 2

3. How to Avoid Liability Don’t do anything wrong Don’t come to work Don’t be supervisor JUST JOKING!!! 3

4. How to Avoid Liability-Really ■Know the Organizations policies ■Follow the Organizations policies ■Understand Basics of Relevant Laws ■Follow legal requirements ■GET TRAINING IN ABOVE ■Use HR ■Avoid post employment pitfalls ■BE THE SUPERVISOR –ENFORCE POLICIES –DISCIPLINE EMPLOYEES 4

5. Reality of Lawsuits ■Any person can be sued at any time for any reason. This is the same for county employees. ■If a county employee is named in a lawsuit and they were acting in the course and scope of their employment the county is obligated to defend. ■Even if the employee is negligent, the county still has to defend. However if the employee is acting outside the course and scope of his duties, or if it is a criminal act, the county is not obligated to defend. ■County employees are named in many cases. 5

6. HR ISSUES: Be The Supervisor ■You have title and that comes with responsibilities ■HR is an extremely important part of a supervisors job (not just getting the road or weed work done) ■DO NOT RETALIATE OR LET OTHERS DO SO –WC, ADA, DISCRIMINATION COMPLAINT ETC. ■Must supervise employees –At work 1 st priority is to employer –Employees are not your friends for that purpose –Don’t let things slide –Must document issues –Must do HR part of job too !! 6

7. Policies/CBA ■CBA ALWAYS TAKES PRECEDENCE –Check CBA first and see if applicable –If not….check policies ■Policies are Road Map for Supervisor ■Policies are Guidance for Employees ■CONTRACT –If the Contract is not followed this VIOLATES law and is a cause of action under the Wrongful Discharge Act (WDA) 7

8. Wrongful Discharge Act ISSUE FOR SUPERVISORS— THINK MACO REQUIREMENTS UNREASONABLE §39-2-904. Elements of wrongful discharge-presumptive probationary period (1) A discharge is wrongful only if: (a) it was in retaliation for the employee's refusal to violate public policy or for reporting a violation of public policy; (b) the discharge was not for good cause and the employee had completed the employer's probationary period of employment; or (c) the employer violated the express provisions of its own written personnel policy. (2) (a) During a probationary period of employment, the employment may be terminated at the will of either the employer or the employee on notice to the other for any reason or for no reason. (b) If an employer does not establish a specific probationary period or provide that there is no probationary period prior to or at the time of hire, there is a probationary period of 6 months from the date of hire. 8

9. Wrongful Discharge Act –Exclusive Remedy for Wrongful Discharge –ONLY TWO TYPES OF DISCHARGE: ■a constructive discharge ■Any situation employer severs relationship ( including resignation, elimination of the job, layoff for lack of work, failure to recall or rehire, and any other cutback in the number of employees for a legitimate business reason) –“Good cause" means reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employer's operation, or other legitimate business reason. –Send grievance policy within 7 days 9

10. Probationary employee ■WDA –can terminate without good cause –HOWEVER use Good Cause to Avoid other Claims ■Discrimination ■Must document file- give employee chance to respond ■Don’t let bad employee continue to work for you—tendency is to let them slide –Bad employee will cause you problems down the road 10

11. Holstrom Clause ■Must get approval for termination from MACO ■Approval: covers costs/expenses if subsequent claim ■AVOID LIABILITY—FOLLOW THIS ADVICE NO MATTER HOW ONEROUS YOU THINK IT IS 11

12. Terminations ISSUE FOR SUPERVISORS: Employee does not meet production, employer ignores issues, situation becomes worse and now you need to terminate the employee ■Investigation-not done or not done in good faith ■Employee not given all reasons or truthful reasons for termination then requests termination letter per statute ■Failed to provide due process –Don’t give employee notice of charges (oral or written) –Don’t follow up on “bad” facts 12

13. Discrimination Issue for Supervisors: person is whining or overly sensitive, complaint not that serious Second Issue: Supervisors see what is happening and let it go on!!! 13

14. The Law: State and Federal Federal Law-Title VII provides: It shall be an unlawful employment practice for an employer to discriminate in the terms and conditions or privileges of employment (or applicant—or person because of an association with a person in a protected category) on the basis of the individuals, race, sex, age, national origin, religion, color, mental or physical disability. State Law: States differ in what is considered a protected category. States all include the federal categories of: race, religion, color, national origin, age, physical or mental disability, or sex However, in Montana and some cities, included: creed, marital status, sexual orientation, gender identity, genetic information, political affiliation/beliefs, age can change and not be just over 40 (NY over 18- MT any age) Any type of discrimination should not occur and should be reported to HR 14

15. Montana Human Rights Act 49-2-303. Discrimination in employment. (1) It is an unlawful discriminatory practice for: (a) an employer to refuse employment to a person, to bar a person from employment, or to discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, creed, religion, color, or national origin or because of age, physical or mental disability, marital status, or sex when the reasonable demands of the position do not require an age, physical or mental disability, marital status, or sex distinction; *Political beliefs are also protected *Age is any age—not just over 40 15

16. Governmental Fair Practices Act 49-3-201. Employment of state and local government personnel. (1) State and local government officials and supervisory personnel shall recruit, appoint, assign, train, evaluate, and promote personnel on the basis of merit and qualifications without regard to race, color, religion, creed, political ideas, sex, age, marital status, physical or mental disability, or national origin. (2) All state and local governmental agencies shall: (a) promulgate written directives to carry out this policy and to guarantee equal employment opportunities at all levels of state and local government; (b) regularly review their personnel practices to assure compliance; and (c) conduct continuing orientation and training programs with emphasis on human relations and fair employment practices. (3) The department of administration shall ensure that the entire examination process, including appraisal of qualifications, is free from bias. (4) Appointing authorities shall exercise care to ensure utilization of minority group persons. (5) Compliance with 2-2-302 and 2-2-303, which prohibit nepotism in public agencies, may not be construed as a violation of this section.2-2-3022-2-303 16

17. WHAT IS DISCRIMINATION? ■Decisions or actions based on categories protected under the law (age, sex, race, religion, national origin, sexual orientation, creed, marital status) ■Decisions based on impermissible factors ■Decisions made for other reasons but have a discriminatory impact (decide that a job requires employee to lift 50 lbs) ■New MT case—illegal to limit age of Firefighter applicants ■Class Examples 17

18. Discipline and Paperwork ■Do the paperwork ■Discipline employees –When they violate policy –When actions are not appropriate –When they do not perform ■Document the file when “disciplinary action is taken” 18

19. Post Employment Pitfalls ■WDA –Failure to send grievance procedure within 7 days-lose benefits of statute (limits damages) –If asked must provide letter stating reasons for termination ■Must do by law ■Only state facts but make sure facts as stated to employee—Can’t add ■UI claims –Ultimate decision is not used subsequently but evidence can be –Ignore and don’t respond: really bad because then it becomes implied approval of facts as stated by former employee 19

20. Post Employment Pitfalls con’t ■Background Check –Don’t give out information (even if truth) –Defamation per se –Need release –Don’t follow policy not to give out information –Personal information in MT is private—could violate privacy laws (if don’t have full release) ■Discrimination Claims –Failure to act in good faith –Harassment, medical condition, political beliefs, age etc. ■WC claims –Violation - fail to hire because person had WC claim –2 year rehiring preference –Leave on WC for years and years and years (and on payroll) 20