DEALING WITH THE PROBLEM EMPLOYEE John Ashby

PHILOSOPHY Every employee deserves (1) to known the employer’s expectations; (2) a specific explanation of how he/she is not meeting the expectations; and (3) an opportunity to fix the problem with support from the employer. When it is clear that the employee cannot or will not meet the company’s expectations, take action promptly.

AT-WILL EMPLOYMENT Employment may be terminated for any reason, or no reason at all, but not for an unlawful reason

LEGAL V. ILLEGAL REASONS FOR TERMINATION Exceptions to at-will rule –Limitations Imposed by Contract/Handbook –Limitations Imposed by Anti-Discrimination Statutes –Limitations Imposed by Public Policy Jury duty Workers Compensation

LAWS PROHIBITING DISCRIMINATION Title VII: Prohibits discrimination based on an employee’s “race, color, religion, sex, or national origin.” Americans with Disabilities Act: Prohibits discrimination based on disability Age Discrimination in Employment Act: Prohibits discrimination based on age (40 years old) Idaho Human Rights Act: Idaho law protecting race, color, religion, sex, national origin, disability, age

LAWS PROHIBITING DISCRIMINATION Pregnancy Discrimination Act: Prohibits discrimination based on pregnancy. Occupational Safety and Health Act: Prohibits retaliation for reporting concerns. Family and Medical Leave Act: Prohibits retaliation for exercising FMLA rights. Uniformed Services Employment and Reemployment Rights Act (USERRA): Prohibits discrimination based on military status

RETALIATION CLAIMS 1.Employee engaged in protected activity (i.e. made a good faith claim of harassment) 2.The employer subjected Plaintiff to an adverse action 3.A causal link exists between the protected activity and the adverse action 7

EXAMPLES OF PROTECTED ACTIVITY ADA accommodation request workers’ compensation claim Safety complaint Blowing the whistle on an illegal practice Harassment complaint Discrimination claim

FORMS OF RETALIATION Adverse actions include: ◦ Termination ◦ Demotion ◦ Denial of promotion or training opportunities ◦ Salary/wage reduction ◦ Office relocation ◦ Poor assignments 9

CAUSAL LINK Protected activity must be the “but for” cause of adverse action –University of Texas v. Nasser (2013) Timing alone can be enough if “very close” (i.e. 3 months)

TOOLS FOR DEALING WITH THE PROBLEM EMPLOYEE Recruiting and selection process –The employment application –Interviews –Reference Checks Evaluations Disciplinary Process Termination

EVALUATING EMPLOYEE PERFORMANCE At least annual Uniformity/consistency Accuracy -- do not inflate evaluations Criticism should be clear, specific and unequivocal End on a positive note Employee participation

DISCIPLINE / DOCUMENTATION Documentation is the key to defending discrimination/retaliation claims Use progressive discipline (if appropriate): –Verbal warning –Written warning –Disciplinary action –Termination Handbook should not promise progressive discipline

INFORMATION INCLUDED IN DOCUMENTATION Factual details Statement of the problem Identify the rule or policy Identify prior warnings Identify action taken Describe goal/expectation Warn of future consequences Employee acknowledgement / explanation

TEN STEPS BEFORE TERMINATION 1.Are you able to clearly state the employee’s problem? 2.Is the problem reflected in the employee’s evaluations or other written documentation? 3.Have the proper procedural steps been followed in dealing with the employee? 4.Is the discipline or discharge decision free of bias?

TEN STEPS BEFORE TERMINATION 5.Is the decision free of any circumstances indicating a retaliatory motive by the decision- maker? 6.Is the decision consistent with decisions in similar cases? 7.Has the decision been reviewed by experienced human resources personnel and legal counsel?

TEN STEPS BEFORE TERMINATION 8.Can the discharge or discipline decision be communicated by two managers in an appropriate fashion? 9.Will the employee have the opportunity to tell his or her side of the story? 10. Should you use a severance agreement?

TERMINATION TIPS Do not react without sufficient information Do not delay the inevitable –Take advantage of probationary period Listen to the employee’s explanation Do not embarrass the employee Plan a timetable for departure

EXIT INTERVIEW Goal is to improve the organization Let the employee offer suggestions Take notes, especially if employee raises concerns of discrimination. End on a positive note

SEVERANCE AGREEMENT Consider severance agreement in high-risk situations Employee releases all potential claims against employer Include confidentiality agreement Special consideration for employees over 40 years of age (Older Workers Benefit Protection Act)

THANK YOU! John Ashby