DISSECTING DISCIPLINE ERIN E. MAGEE JACKSON KELLY PLLC DEEM HR ANNUAL WEST VIRGINIA HUMAN RESOURCES CONFERENCE JUNE 9, 2010

THE “MYTH” OF AT-WILL EMPLOYMENT Employment is presumed to be “at-will” unless the employer and employees are parties to a collective bargaining agreement or contract of employment.  The employer or the employee may terminate the employment relationship for any lawful reason without notice or cause.  The doctrine does not give an employer carte blanche to discharge an employee.

FAIRNESS IS THE KEY “At will” becomes something more when you are defending a lawsuit. Bottom line: you need a reason to discipline or discharge an employee. At the end of the day, a jury or judge will look at an employment decision and ask, “was it fair?”

WHY DO WE CARE? When a court instructs a jury in a discrimination or wrongful discharge case, the judge will tell the jury that it must decide whether the employer took disciplinary action for an unlawful reason, e.g., age, gender, filing a workers’ compensation claim. The employer will always provide a nondiscriminatory reason for the disciplinary action, such as failing a pre-employment physical, chronic absenteeism, poor work performance or insubordination.

DOING IT RIGHT Documentation helps the employer prove that its reason for the disciplinary action was the real reason and not an unlawful reason. However, without supporting documentation, the real reason can look like something else, like discrimination or retaliation (the jury may ask--if the plaintiff’s performance was so bad, why didn’t you document it and discipline him?).

SOME DOS AND DON’TS Don’t overstate performance. Ever. Do be objective, and don’t include your personal opinion or subjective remarks. Do be honest and don’t sugar coat problems. Do make the consequences of non- compliance clear.

SOME MORE DO’S AND DON’TS Don’t make comments that identify a protected classification (like sex stereotyping) e.g., don’t tell a female employee to act more feminine, be less aggressive, wear makeup and high heels. Do give the employee a place to comment or disagree with the action. Give the employee a place to set goals (and go back to them the next year).

AND A COUPLE MORE Don’t use legal terms  “You appear to have violated a safety policy” is better than “you violated state safety law.”  “Our investigation suggests that your conduct was harassing” is better than “you created a hostile work environment.”

STILL GOING Don’t document idle gossip--if a serious issue arises, investigate it or, if you’re not comfortable or need guidance, discuss the issue with another management employee. Do keep comments related to the job, and don’t make subjective comments. Do ask someone else in HR or management to review what you have drafted.

YEP, THERE’S MORE Do be aware that s can be considered counseling if they are corrective in nature. Don’t overuse for this purpose to avoid confrontation.

GEES, LAWYERS Don’t think information you document is privileged just because you send it to a company lawyer. Do ask for in-house counsel’s advice if you want the communication to be privileged.

DOCUMENTING EMPLOYEE PERFORMANCE ISSUES Meet performance issues head on and deal with them as they happen. The days of being able to “dump” a performance problem during RIF are gone. Give the employee fair notice of the problem and a chance to fix it.

ADDRESSING EMPLOYEE PERFORMANCE ISSUES Document oral counseling to make a record-- just date and sign it. Develop a form to use for all disciplinary action, from verbal counseling to discharge. And use it for everything – consistency is the key! Always give the employee a place to comment and disagree on the action.

USING PERFORMANCE IMPROVEMENT PLANS Provide a clear and fair explanation of the employee’s performance issues. Include goals and realistic actions for the employee to achieve to assess improvement. Establish a time frame for the employee to meet goals and to re-evaluate performance.

AND IF ALL THIS DOESN’T WORK... Some basic points to consider when deciding whether to discharge an employee. What is the employee’s length of employment? What do the employee’s past performance appraisals show? Is there any record of discipline or counseling?

ADDITIONAL CONSIDERATIONS What is the timing, especially as to workers’ compensation, FMLA and other claims? Is the employee temporarily totally disabled under the Workers’ Compensation Act or seeking reinstatement after such disability? Is the employee returning from leave under the FMLA? Are any absences at issue covered under the FMLA or workers’ compensation?

ANYTHING ELSE? Is the investigation complete, including written statements from witnesses? Was the employee given chance to explain the problem? Is the proposed action consistent with personnel policies? Was the employee aware of the rules or standards he is charged with violating?

THERE’S MORE? Does the punishment fit the crime? Are there mitigating circumstances?  Has the employee been given recent merit increases, awards or promotions?  Is his past record otherwise exemplary? Is a progressive discipline policy or a collective bargaining provision relevant?

PHEW! Okay, I’ve considered all this, assessed the risks and still think discharge is the right course of action. Now what do I do? Get ready to document it.

BE SPECIFIC Bad behavior generally manifests itself in specific examples--identify and include them. Absenteeism generally has a pattern. Outline all absences—including those covered by paid leave or law in contrast to those not covered and unexcused. Poor performance almost always can be documented chronologically—go through all the steps.

WHO? Who was involved in the action? Who witnessed the unacceptable action, performance problems? Who did you interview and what did each person say?

WHO? From whom do I need to get a written statement? Who was involved in the decision to terminate the employee’s employment and what was the role of each person?

WHAT? What did the employee do (or not do)? What policy, practice, rule (but not necessarily law) did the employee violate? What did you do to investigate the problem? What did you do to address the issue?

WHAT? What happened to the last employee who did (or didn’t do) the same thing? What else do I need to know that I don’t know already? Don’t be afraid to go back and get more information if you think it might be important (or even if you think it might not be important).

WHY? Why did the employee do (or not do) what he did (or didn’t do)—what is his explanation? Why do you not buy his story? Why do you believe others over the employee? If you are taking different action than the past, why are you doing it this way now?

WHERE? Where did all this happen? Where is all this going? How did we get where we are?

WHEN? When did significant actions take place? Include specific dates and times. Remember, an employee has one year to file a WVHRC charge and two years to file a lawsuit. Document everything immediately.

HOW? How did the employee violate policy, practice or rules? How did the employee fail to address his performance issue? How was the employee evaluated? How many paid leave days does the employee have left?

WHY NOW? Why did you decide to terminate the employee now? What triggered the decision to discharge the employee? How long have you tolerated the behavior, performance issues or the like? What is the difference this time?

THE BIG PICTURE Make sure that you understand all the factual circumstances leading up to the decision and all the issues surrounding the decision. Always put everything in context. Don’t forget all the other do’s and don’ts applicable to evaluation, performance and discipline.

THE END QUESTIONS? CONCERNS? COMMENTS? THANKS !