Basics of Personnel Management Presenter: Priscilla Riedel-Cohan, MS, RD, LD, SFNS PriDe Performance Consulting, LLC

Components of Managing Employee Issues  Discrimination  Interviewing and Hiring  Employee’s Privacy Rights  Wage and Hour Laws  Controlling Absence and Managing Leaves  Performance Appraisals  Employee Discipline  Avoiding Wrongful Termination

Discrimination  Equal Employment Opportunity  Prohibits discrimination in employment hiring, firing, compensation and terms, conditions or privileges of employment on the basis of race, color, religion, sex, pregnancy or national origin.

 Affirmative Action  Prohibits discrimination against any employee or applicant on the basis of race, sex, color, religion, or national origin and requires affirmative action to ensure that applicants and employees are employed and advanced in employment without regard to race, sex, color, religion, or national origin.  Revisions include requirements for contracting companies to take positive steps toward eliminating the present and future effects of past discrimination against women and minorities.

 Age Discrimination in Employment Act (ADEA)  It is unlawful for an employer to fail to, or refuse to hire, to discharge, or otherwise discriminate against individuals 40 years of age or older with respect to compensation, terms, conditions, or privileges of employment because of age.  It is unlawful to forcibly retire an employee. An exception does exist for executives.  It is unlawful to give preference because of age to one person over another within the protected age group.

 The Older Workers’ Benefit Protection Act  Voluntary early retirement plans are permissible, and incentives to encourage early retirement are also allowed.  Workers’ Adjustment and Retraining Notification Act (WARN)  Employers must give 60-day advance written notice to employees and local government in the event of a closing or mass layoff of 50 or more employees.

 Rehabilitation Act of 1973  Government contractors and subcontractors must take affirmative action to employ, advance in employment, make reasonable accommodation and otherwise not discriminate against handicapped individuals.  Americans with Disabilities Act of 1990 (ADA)  Prohibits private employers from discriminating against individuals with disabilities.  The ADA also prohibits retaliation against an employee for taking any action pursuant to the Act.

 Pregnancy Discrimination Act  An amendment to the Civil Rights Act of 1964 to reinforce a prohibition on employment discrimination on the basis of sex.  Equal Pay Act of 1963  Prohibits pay differentials on the basis of sex.  Civil Rights Action of 1991  Overturns certain Supreme Court decisions and offers plaintiffs in discrimination suits the right to jury trials and the ability to recover mental anguish and punitive damages.

Interviewing and Hiring  The Recruiting Process  The Job Requisition  The form or announcement that a job is open and must be filled.  Job descriptions are an important component of detailing the requirements of the position being advertised.

Sample Job Description

Sample Time and Duties Schedule

 Sources of Applicants  Employee referrals  College placement programs  Social service agencies  State employment agencies  Newspaper/Magazine advertising  Job fairs  Fee agencies  Flyers distributed to customers

 Processing Replies  Respond quickly, courteously and legally  To the extent that it is possible, eliminate discriminating information from an employee’s resume or application file before the applicant is thoroughly screened for interview.

 The Employment Application  Employment applications should be legal.  Recheck applications periodically to make sure they do not include potentially illegal questions, i.e. what year did you graduate high school.

Sample Application for Employment

 Pre-employment Screening  Employers are wise to invest appropriate time and money in recruiting the right employee to eliminate potential liability issues.  Vicarious liability imposes liability on employers for the acts of their employees performed within the scope of their employment.  Negligent hiring arises when an employer knew or should have known by conducting a reasonable pre-employment investigation that an employee was not competent or qualified to perform the job.

 Pre-employment Testing  The easiest tests to defend are content validity tests.  These include typing tests, requiring a cashier to make change or truck drivers to drive a truck.

 Testing must be lawful in that it must  measure significant responsibilities of the job,  predict job performance, have no impact on a protected class,  have a business necessity,  be administered consistently, and  administered in the environment where the job is usually performed.

 Pre-employment testing may include:  Skills testing  Psychological Examinations  Polygraph Testing  Honesty Testing  AIDS Testing  Drug and Alcohol Testing

 Conducting Interviews  Research shows that interviewers tend to like persons who “look” like themselves.  Those who conduct interviews need to be trained on how to conduct interviews using only job- related criteria.

Acceptable Pre-employment Inquiries See attached table.

 Reference Checking  Identify interview/resume data to be verified.  Prepare for the reference interview with specific questions.  Open the call by identifying yourself and explain the purpose of the call.  Ask the series of prepared questions.  Close the call thanking the reference for his or her time.

 Offer Letter  Letters are excellent ways of making the representations for employment known and outline the terms and conditions of employment.

 Considerations when writing the letter:  Quote compensation in the lowest denomination possible.  Avoid mentioning future deadlines or milestones.  Avoid terms such as “permanent” or “career.”  Be careful of language mentioning a new employee probation period.  Keep the letter brief.  Keep the letter upbeat, but avoid expressions of hope and optimism.  Send the original letter and a copy along with a self- addressed stamped envelope. The new hire signs the copy and returns it to the employer.

 Rejecting Unsuccessful Applicants  Avoid creating disgruntled applicants by doing the following:  Don’t set applicants’ expectations unnecessarily high.  Provide a quick response.  Give polite, considerate responses.  Indicate that you have selected the candidate who is the “best fit” for the job, not the “best qualified.”  Avoid becoming involved in discussing the rejected applicants’ qualifications with those of other applicants.

Employee’s Privacy Rights  Protecting Employee Privacy  Approximately half of the states have laws that provide employees some measure of access to their personnel file or other records maintained by their employers.  Some state laws allow employees to correct errors or omissions in their personnel files.  No comprehensive federal law regulates employee access to records in the private sector.  Medical information must be treated as confidential.

 Computer and phone usage may be monitored utilizing employee acceptable use policies that are consistently enforced.  Employee desks, lockers, and storage areas are subject to employer search and seizure. It is typically recommended that the employer’s option be noted in the employee handbook therefore placing all employees on notice of such potential action.

 Maintaining Lawful Files  Central personnel files are necessary.  “Local” files by supervisors should be limited to copies only.  Reasons for central filing are:  To maintain quality control of documents.  To help guide uniform treatment of employees.  To help the human resources department spot recurring problems and training needs.  To help accurately assess and maintain the strength of the employer’s position with regard to legal protection.

Wage and Hour Laws  Exempt or Non-Exempt?  Exempt “white-collar” employees are exempt from minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA)  Exemption is NOT determined by the title of the job, but by the nature of the duties actually performed.  Exempt employees typically include:  Executive  Administrative  Professional  Outside salesperson

 Regular Rate of Pay  “Regular rate” of pay is usually defined as all remuneration for employment paid to, or on behalf of the employee, but shall not be deemed to include:  Sums paid as gifts  Payments made for occasional periods when no work is performed, i.e. vacations  Sums paid in recognition of services performed during a given period, i.e. sharing plans or year-end distributions  Contributions irrevocably made by an employer to a trustee or third person  Extra compensation provided as overtime pay or weekend pay as well as that provided as a part of a collective bargaining agreement.

 Determining Hours Worked  All employees covered by the FLSA must be paid at least a minimum wage for all hours worked and overtime for all overtime hours.  Only bona fide volunteers are exempt from this provision.  Time in which the employee is “waiting to be engaged” is not required to be compensated, i.e. scheduled meal periods.  Other “waiting time” is not required to be compensated.

 Maintaining Exempt Status of Salaried Employees  Salaried employees are not necessarily exempt employees.  Employees receiving salary must be receiving the minimum “salary basis” to continue to qualify as exempt.  Salaried employees typically cannot be “docked” pay in any week in which he or she performs any work. The exception to this rule is as it related to the Family Medical Leave Act (FMLA).

 Fair Labor Standards Act (FLSA)  The employer must pay a minimum wage per hour.  Overtime must be paid after 40 hours/week at the rate of time and one-half of the employee’s basic rate.  Equal Pay Act of 1963  Prohibits pay differentials on the basis of sex.  Davis-Bacon Act  Requires federal construction contractors to pay mechanics and laborers “prevailing” wages and fringe benefits on federally funded construction projects.

 Walsh-Healey Public Contracts Act  Requires manufacturers and dealers supplying the federal government to pay the prevailing minimum wage for straight time hours, pay time and one-half employees’ basic rates for hours worked in excess of 4- hours in a workweek, not employ any person under the age of 16 years, not employ convict labor, maintain sanitary and non-hazardous working conditions, and post the law’s requirements in a prominent place.

 Service Contract Act  Employer required to notify employees of statutory wage rights.  Consumer Credit Protection Act  Restricts garnishment withholding to the lesser of 25% of an employee’s weekly disposable income or the amount by which the employee’s weekly disposable earnings exceed 30 times the federal minimum hourly wage.

Controlling Absence and Managing Leaves  Attendance problems can be reduced by the following:  Establish and maintain standards  Separate sick leave from absence standards  Follow a progressive counseling policy for violations  Use the hire/orientation period for new employees  Publicize your interest in good attendance  Strive for consistency

 Attendance Issues Under the ADA  Attendance policies must be applied neutrally and consistently to all employees.  Regular attendance may be required if it is necessary to an “essential job function.”  There is no requirement for employees to be allowed to work only when they are able.  Absences due to a disability are treated differently than those that are not due to a disability.

 Absences due to medical problems are case-by-case depending on the individual’s disability. Considerations are given to migraine headaches, infertility, alcoholics, and drug addicts.  Employers are not required to provide an opportunity for rehabilitation.  Reasonable accommodation is required for employees who are disabled.

 Attendance Issues Under the FMLA  Intermittent or reduced work schedule leave may be part of FMLA.  Chronic absenteeism may be designated as FMLA leave if a long-term medical condition is causing such absences.  Employees have a responsibility to notify their supervisors of a foreseeable need for FMLA leave.  Leave may be delayed by 30 days if reasonable notice was not provided to the employer and the leave was foreseeable.

 Employers have a right to require medical certifications to support FMLA and returns to work.  FMLA does not count against an employee as a part of the absentee policy.  Childbirth, adoption, and foster care leave may be negotiated with the employee under FMLA.

 Returning the Injured Employee to Work  Light duty work may be required when a worker is “re-employed.”  Reasonable accommodation may be an alternative to light duty.  Implementing a light duty program can be an effective way to transition employees back into the job.

 Holding Open the Job  The decision on whether or not to hold a job open depends on economics and compliance with company policy.  Considerations include:  Duration of the leave  The nature of the job  The availability of someone to fill the position

Performance Appraisals  The Legal Context  No state or federal law requires employee appraisals.

 Implementation  Performance appraisals should be based on:  Job analysis  Specific and objective evaluation criteria  Advance notice of job standards  Evaluation by a higher level of management before given to the employee

 The best appraisal discussions are:  Descriptive  Solution-Oriented  Empathic  Equal  Provisional  Cause-Oriented

 Pitfalls of Negligent Performance Appraisals  Appraisal does not adequately identify an employee’s shortcomings  Poor performance appraisal costs an employee their job based on false negative or inaccurate information

 The Consequences of Charity  Charitable appraisals result from lack of supervisory self-discipline.  The problem may go away by itself.  There is no assurance that a replacement employee will be any better.  Some supervisors are powerless to make replacements.

 Advantages of Being Candid  Supports successful defense of a possible future negative personnel decision.  Helps to maximize long-term productivity of the organization as a whole.  Has a morale enhancing effect on the entire work force.

 Documentation  Follow important personnel actions with documentation promptly.  Ignore minor issues and focus on important incidents and behaviors which reflect significantly on employee job performance and conduct.  Focus on job-related standards and behaviors.  Avoid using pre-printed forms on which to record documentation.

 Get the employee’s side of the story on record, preferably on the documentation itself.  Avoid the risk that documentation will create the impression of retaliation.  Take action to bridge past warnings.

Employee Discipline  Progressive Employee Discipline  Level I: The Oral Warning  Level II: The Written Warning  Address the employee  Write professionally  State the problem or violation  State the employment rule, policy or practice regarding the situation

 State how the action of the employee is hurting business operations  Refer to previous warnings about other performance problems  Set forth a corrective action plan to remedy the deficient performance  Include consequences for failure to improve.

 There is no criteria on how many warnings must be allowed before an employee can be discharged.  Considerations include:  The seriousness of the matter.  Interval since prior warning.  Company practice in similar situations with other employees.  The employee’s length of service.  The employee’s overall record.  Compelling need for individual consideration.  Unfortunate timing which might cast doubt on the employer’s motives.

 Level III: Probation/Suspension  Investigative suspension allows you to remove the employee from the workplace for a given time to investigate the circumstances surrounding a given incident.  Disciplinary suspension allows removal of the employee from the workplace as a punishment for a given action or behavior.  Decision-making suspension allows you to give the employee a short time off (with pay) to consider his or her behavior and decide if the employee wants to meet your standards to keep his or her job.

 Probation is a specified time allowed for the employee to demonstrate improved performance.

 Level IV: Final Warning and Termination  Under no circumstances should an employee be fired on the spot.  Suspend the employee, meet with your manager, gather documentation and plan a time for dismissal.

 Final Thoughts on Discipline  Don’t keep secrets about performance.  Don’t institute progressive discipline without getting backing from your manager.  Refrain in write documentation from anything other than facts and comments on observed behavior.  Be sure to investigate an employee’s claims of mitigating circumstances.  Check to see how similar terminations have been handled in the past.

Avoiding Wrongful Termination  Think Before You Act  Do not act on impulse!  Some Basic Legal Concepts  The “Reasonable Person” doctrine implies that a supervisor has a sound business reason for the action taken.  Past practice supersedes current policy, so follow established policies that are in place to help guard your position.  Follow antidiscrimination law. Consider if your action has an adverse effect on a member of a protected class or category, is held to a neutral standard based on legitimate business necessity, and whether or not you have offered reasonable accommodation.

 Treat cases alike, but don’t treat everyone identically.  Remember, voluntary resignation does not exempt an employer from a potential lawsuit.  Avoid defamation when explaining to remaining staff why an employee has been discharged.  Lawful termination begins long before the actual event.

 In general:  Inform employees of company policies when they are hired  Establish clear and written behavior standards  Use an honest and informative performance evaluation system

 When problems occur:  Investigate the facts before you act  Use a progressive disciplinary system  Document at each step of the disciplinary process  Be consistent

 As you consider termination:  Review the employee’s personnel file  Consider transferring or reassigning the employee to an alternative position as opposed to terminating  Termination decisions should be approved by at least two managers  Review all company handbooks, policies and other documents that address handling terminations

 When you decide to terminate:  Do not terminate employees based on false pretext  Involve human resources and possibly your employment attorney at the earliest opportunity  Make the termination process efficient and confidential  Conduct discharge interviews and exit procedures in a sensitive, humane, and considerate manner  Conduct exit interviews upon all resignations or discharges  Consider offering employees outplacement services to ease the blow of termination

 How to Fire an Employee  Preliminary  Cool down  Take care of administrative details  Outline beforehand critical points to cover during the discharge interview  Use a private place other than your office—so you can leave

 The Discharge Interview (10-15 minutes)  Get directly to the point  State reasons for termination  Don’t encourage employee hopes that might change your decision  Don’t suggest self-improvement  Accept and hear the employee’s feelings, but stick to your guns  Re-direct conversation to the future  Close quickly

 Document the interview  Inform all associates that have a business need-to-know  Arrange an exit interview with a third party  Close all personnel business in a timely manner.

Manager’s Pre-Dismissal Checklist

Questions and Answers

References  Council on Education in Management. (1995) Personnel Law for Supervisors. Borgman Associates.