Positive Employee Relations J. Bruce Cross Cross, Gunter, Witherspoon & Galchus, P.C. 500 President Clinton Avenue, Suite 200 Little Rock, Arkansas 72201 bcross@cgwg.com 501.371.9999 www.cgwg.com

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

SELECTION PROCESS

THE SELECTION PROCESS– INTERVIEWING/HIRING/PROMOTI

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.

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

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

ONLINE VS. PAPER APPLICATION PROCESS

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

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

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

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

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

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

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

Tools for Creating the Proper Hiring Procedure The Interview

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

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

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

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

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.

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

Common Interviewing Errors

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!

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.

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.

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.

“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!”

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.

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.

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.

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.

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.

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

Arkansas Reference Act A.C.A. § 11-3-204 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.

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

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

Arkansas Reference Act Whether the employee is eligible for rehire

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

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

NOT KNOWING THE LAWS TO WHICH YOU ARE SUBJECT

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) 173455

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 173455

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 173455

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 173455

42 U.S.C. §1981 Remedies Back Pay Front Pay Attorney’s Fees Compensatory & Punitive Damages Injunctive Relief 173455

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? 173455

Arkansas Civil Rights Act Remedies Affirmative Relief Back pay Interest Costs Attorney Fees Compensatory and punitive damages 173455

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 173455

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. 173455

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. 173455

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 173455

Equal Pay Act Remedies Wages lost Liquidated damages Attorney’s fees 173455

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.

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

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.

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.

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

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.

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.

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.

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;

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.

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

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

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

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.”

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.

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”.

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.

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.

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.

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

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.

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.

PROTECTING AGAINST RETALIATION CLAIMS

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 . . .”

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.”

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

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.

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

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

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.

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

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

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.

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.

HARASSMENT PREVENTION

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 NOTES: 173533

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. NOTES: 173533

THREE CATEGORIES: Elements Quid Pro Quo Acts of gender-based animosity. Sexually hostile environment. Elements Based upon protected status Unwelcome Severe and Pervasive NOTES: 173533

A HOSTILE WORK ENVIRONMENT CAN INCLUDE: PORNOGRAPHIC MAGAZINES; WHAT IS PORNOGRAPHIC? HUSTLER? PENTHOUSE?

WHAT ABOUT COSMOPOLITAN?

GQ?

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”

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

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?

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

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

CONDUCT MUST BE BASED ON AN EMPLOYEE’S PROTECTED STATUS

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

Is this “based upon Protected status”?

CONDUCT MUST BE SEVERE AND PERVASIVE

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 NOTES: 173533

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. NOTES: 173533

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” NOTES: 173533

WHAT IS SEVERE & PERVASIVE? Isolated incidents may suffice If severe, a single act can suffice.

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

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. NOTES: 173533

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.

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.

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

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. NOTES: 173533

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. NOTES: 173533

WHAT MUST THE EMPLOYER DEMONSTRATE TO ESTABLISH AN AFFIRMATIVE DEFENSE?

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. NOTES: 173533

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. NOTES: 173533

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.

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.

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

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. NOTES: 173533

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.

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

WHAT TO DO IF A COMPLAINT IS REGISTERED?

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

INVESTIGATIVE PROCESS Conduct investigatory interviews with The complaining employee; All possible witnesses; and then The alleged harasser. Get signed statements if possible. NOTES: 173533

Don’t Pre-Judge because: Taints investigation thus eliminating use of the Affirmative Defense Complainant could be lying!

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

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? 173533

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.

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

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

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.

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?

DISCIPLINE, TERMINATION AND DOCUMENTATION

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

BASIC PRINCIPLES FOR ISSUANCE OF DISCIPLINE Mandates Good Human Relations Participative Management Employee Involvement Solicit Input Listen Patience “Golden Rule” 160011

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”

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 160011

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 160011

Employer Social Responsibility To “salvage” employee Better us than society 173497

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 160011

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 160011

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

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.

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.

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

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.

EMPLOYMENT-AT-WILL WHAT DOES THAT MEAN?

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.

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

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

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?

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

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?

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?

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.

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

Before Issuing Discipline Conduct an Investigation That includes: 1. Get Human Resources involved immediately! 166

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 167

Before Issuing Discipline (continued) Talk to all other relevant witnesses and obtain statements Prepare investigation report 168

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 169

Length of Investigation Depends on Nature and Complexity of the Violation Normally within 5 working days unless circumstances dictate otherwise.

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

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

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

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 173497

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 173497

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 173497

ANY DISCIPLINARY DISCUSSION MUST BE DONE WITH RESPECT! 173497

Disciplinary Discussions Make sure you seek a commitment for improvement State your expectations clearly Request and obtain employee’s cooperation 173497

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! 173497

Making Documentation Effective Focus on job-related standards and behaviors Reflect good faith attempts to salvage the employee Take action to bridge past warnings

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

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.

REMEMBER! UNLESS IT IS DOCUMENTED, IT DID NOT HAPPEN 173497

Steps of Insubordination 1. Order given Clear Concise Direct 2. Repeat the order Warning of discipline 3. Ask for explanation – communicate – Why? 173497

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 173497