Transcript HOW TO DOCUMENT EMPLOYEE PERFORMANCE AND …

HOW TO DOCUMENT
EMPLOYEE PERFORMANCE
AND DISCIPLINARY
PROBLEMS
Presented By: Francine Breckenridge
OVERVIEW
• Housing Authorities often need to rehabilitate or eliminate problem
employees.
• Housing Authorities often must defend allegations of unlawful
employment practices, including discrimination.
• Housing Authorities need to be able to demonstrate that whatever
action was taken in dealing with a borderline employee was based on
lawful, non-discriminatory reasons.
• Smaller Housing Authorities have a lot more flexibility than larger
ones and should avoid getting tied up in complex discipline or appraisal
systems that do not work for them.
Will Your Housing Authority Benefit From Clear
Appraisal, Discipline, And Termination
Procedures?
1.
While clear procedures may be helpful, do not establish procedures
you can’t enforce.
2. Handbooks should clearly state they do not constitute a contract of
employment or alter the at-will employment relationship if you are
in an at-will state.
3. Keep written rules simple
a. The larger the Housing Authority, the more the need for
established procedures
b. Smaller Housing Authorities should avoid complex
procedures, policies, forms
c. Design procedures and forms so the lowest level supervisor
will understand and follow
4. Prerequisites to an effective performance procedure
a. Supervisors and employees must mutually respect and
cooperate with each other to accomplish the Housing
Authority’s goals
b. Supervisors must recognize, encourage and support
employees’ efforts to meet clearly defined goals
c. Supervisors must be seen by employees to be competent,
knowledgeable and excited about their employment and
professional positions
d. Employees must understand that the supervisor is sincerely
interested in assisting the employees in improving their job
performance
e. Employees must be receptive to suggestions and constructive
critiques to improve the employee’s job performance and jobrelated skills
Two Kinds Of Actions Hardest For
Housing Authority To Defend

Discipline and discharge based on failure to properly
do the job or to follow instructions (sometimes called
“performance cases”)
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Discharge for a single or first incident of misconduct
without a prior warning, unless egregious
What Kind Of Disciplinary
Procedures??
1.
For a large Housing Authority with one or more human resource
professionals, there can be formal written procedures for periodic
appraisals and for discipline. The smaller the Housing Authority,
the more informal the process.
2. If you use a matrix for disciplinary actions, keyed to type of offense
and number of prior offenses, be prepared to apply it across the
board. Don’t let the exceptions undermine the rule.
3. Written progressive disciplinary procedures - framework but
should not be too restrictive (best approach is to utilize progressive
discipline concepts without “chiseling them in stone”).
4. Listed offenses are “illustrative” and not exclusive.
5. One-on-one contact with employees on performance and conduct
problems, followed by some written affirmation.
Training
1.
New employees or employees going into a new job need adequate
on-the-job training.
2. Provide in-house training to update employees on new
developments and procedures affecting their jobs.
3. Training should include sharpening of “people” skills.
 How to deal with clients, customers
 How to supervise and treat subordinates
 Sensitivity training so as to avoid offensive comments, actions
4. In-house and formal training programs can assist employees
having performance and other problems.
5. Keep attendance at key training programs.
6. Keep records on training.
 When was it conducted?
 Length of training session(s)
 What was covered?
 Who was present?
 Attendance sheets signed by employees
(add printed names to be certain they are
legible)
 Consider certificates of attendance on key
trainings to be retained in personnel files
for easy evidence later.
Purpose of Performance Appraisals
Evaluate the purpose(s):


To determine the extent to which an employee has met or exceeded
performance standards or expectations
To identify and reward performance which consistently exceeds
standards by means of:
• Merit pay increases
• Discretionary bonuses
• Increased responsibility
• Promotions

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To identify and deal appropriately with consistently substandard
performance and to motivate employees to improve their
performance by
• Withholding or denial of pay raises
• Denial of discretionary bonuses
• Counseling/rehabilitation
• Disciplinary action including termination
To support other personnel actions based on performance
To inventory the Housing Authority’s most valuable asset – its
employees
Improve communications between supervisors and employees by
• Initiating periodic superior-subordinate communications
• Allowing employees a comfortable and open forum to explain
their views of the workplace, their concerns, and their
understanding of their performance

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Serve as a “mirror image” of the supervisor’s managerial skills and
performance
•
Periodic review of supervisor’s efforts, or lack thereof, to assist the
employee in efforts to improve performance
•
Periodic review of job-related performance feedback, or lack thereof,
given to the employee by the supervisor
Develop documentation for proper determination of termination
decisions, defense of EEO charges and lawsuits filed against the Housing
Authority
•
Past evaluations reviewed by a neutral, knowledgeable third party
(labor and employment attorney) prior to the adverse employment
decision to assess the advisability of the proposed
termination/discipline
•
If a complaint or lawsuit is filed, past performance appraisals could
support the employer’s defense if nondiscriminatory reasons for the
Housing Authority’s actions were documented and communicated to
the employee
•
Often inflated evaluations end up being the best evidence a former
employee has. An employee terminated for poor performance
whose last review was rated “meets expectations” is more credible
when challenging a performance related termination.
Establish Performance Standards
Or Expectations
1.
Can be written
a. Useful when
 Housing Authority is large
 Human Resources staff available to assist/review
 Standards are quantifiable, i.e., meeting, sales, budgets
or production quotas
b. Can be attached to or made part of appraisal
c. Should be signed and dated by both supervisor and employee
2. Can be general, verbal
a. More difficult to measure against
b. Verbal communications subject to dispute unless reduced to
writing in memo signed by supervisor and employee; or follow
up confirming email from employee to supervisor.
3. Job description important
a. Must accurately define duties
b. Can include performance standards if fixed and objective
c. Should be in writing, signed by supervisor and employee
d. Revise as duties change
e. Make clear other duties may be assigned from time to time
4. Performance standards must be
a. Job related
b. Reasonable
c. Attainable
5. Different standards and forms may be
appropriate for various types of positions
a. Clerical and administrative support staff
b. First-line supervisors
c. High level managers, executives
d. Professionals and other expert staff personnel; i.e., attorneys,
accountants, auditors, human resource directors, etc.
The Performance Appraisal
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The larger the Housing Authority and the more diverse the
workforce, the greater the need for complexity. Smaller Housing
Authorities may not need to use any specific format.
An appraisal should be more than a generic description of
performance
Any rating elements should be keyed to functions essential to
performance of job
Not too complicated or difficult to understand

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Must relate to specific period of time
Ratings based on extent to which employee met or failed to meet
standards. Additional ratings should be defined on
the form or on instructions accompanying the form.
Again, smaller Housing Authorities
may wish to keep it simple.

Should have space for short, specific comments in each rating element and
general comments in connection with overall rating.
Consider requiring at least two or three reasons for any rating other than
meets expectations.
Separate form or section if the form will address recommendations for
promotion
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What Is An Item Of “Performance”?
1.
Essential job functions: Related to specific assigned duties the
performance of which are essential to do the job
2. Attitude
 Includes whether “team player”
 Includes courtesy to others
 Attitude is too often disregarded yet
underlies many personnel actions
3. Conduct
 On the job
 Off the job when ability to do job is affected or brings discredit
to the Housing Authority
Preparing An Employee’s Appraisal
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Be truthful – call it as you see it
Be fair – do not exaggerate
Be factual – avoid platitudes
Be specific – avoid generalities
“Satisfactory” Means
SATISFACTORY!
1.
2.
3.
4.
If the employee is not meeting standards, do not rate “satisfactory” or
similar rating.
Do not inflate ratings. Just because all but one employee “exceeded
expectations” does not mean that the problem employee simply “met
expectations.” A lower grade, if not merited, sends a false message. Why
would you terminate an employee for poor performance when just months
earlier you told him that he was meeting your expectations? If he is
meeting your expectations, then there was no need for improvement.
Remember – not everyone is motivated to exceed expectations.
Never give inflated rating to “encourage” employee – it will come back to
“bite” you.
If employee is mixed--great technical skills but horrible attitude--then
point this out in the closing remarks noting that improvement must be
made on the attitude side because technical skills alone is not sufficient.
Discuss
1.
2.
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2.
3.
4.
5.
6.
7.
Point out strengths.
Explain that appraisal is important –
both to employee and Housing Authority – and why.
Explain shortcomings.
Show what improvements, if any, are needed and expected.
If below standard, describe consequences of failure to improve – If they
don’t improve, could they face termination before the next appraisal? Be
honest.
Have employee sign the document acknowledging discussion.
Stress the importance of two-way communication; welcome employee
questions and feedback.
Discuss specific steps the employee could take to improve performance.
Discuss time frame within which employee should improve – use
measurable standards of time (not “pretty soon”) and improvements
desired (not “some increase” or “substantial improvements”).
Approaches For Poor Performers
1.
Informal discussions/counseling
a. Address concerns directly with the employee and do so in a timely fashion
b. Follow up an oral discussion with a quick email or memo, retaining a copy
c. For supervisors and employees with work email, consider having the
supervisor create an email folder for each direct report. Then all key
performance related communications (good and bad) can be copied to this
subfile for later reference. A compliment from a customer can go to the
subfile. A memo from the supervisor to the employee explaining the
problems with a report can be copied to the subfile. Etc.
d. If a supervisor finds that he is saying the same thing to the employee on
more than one occasion, then it is definitely time to put it in writing. This
can be in a formal way, or it can be informal, via email or memo outlining
the issue.
e. The supervisor can even ask that the employee create the documentation
by asking that the employee send him an email or memo outlining his
understanding of the supervisor’s concerns and expectations going
forward. Then, if the employee gets it wrong, the supervisor can reply with
corrections.
2.
Written memorandum of counseling or performance improvement
plan
a. When more casual efforts fail, or when the initial concern is
serious, it is time to have a formal written memorandum.
b. The written memorandum can include:
 The history of the concern and prior efforts to correct. (This
is where you reference the prior meetings, emails and
memos).
 The concern
 The expectation going forward
 The ramifications of failure to improve
 The signatures of both the supervisor and the employee
 At-will employment reiterated, if applicable
c. Where there may be specific steps or objective factors at play, a
formal performance improvement plan (PIP) may be appropriate
“Walk The Last Mile”
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In “performance” and “minor” misconduct situations try to exhaust
all efforts to salvage employee
Document everything – informal notes, formal memos
acknowledged by employee, etc., – but remember: it is
discoverable during litigation so it should be respectful
Notes, memos, evaluations are invaluable as both evidence and
memory refreshers during litigation which could be several years
after the event
If possible, give written warning before termination – as early in
the process as appropriate since the next time might be the “last
straw”
Judges and/or juries are not as prone to “second guess” when they
see what efforts were made to save the employee and that he was
warned of the consequences of his failure to improve
Serious “Misconduct” Cases
1. Investigate circumstances
2. In “minor” misconduct situations on the job make memo of
conversations with witnesses, supervisors, etc.
3. In “serious” misconduct cases,
a. Consider appointing an “investigator” other than person who
would take disciplinary action
b. If taking witness statements, consult legal counsel first
c. Get employee’s side of story
d. If necessary, suspend employee pending outcome of
investigation
e. If potentially criminal conduct is in issue, consult legal
counsel first.
4. If discipline or discharge seems appropriate, evaluate any similar
instances and how they were addressed
I’m Not Signing!
1.
2.
3.
Explaining that their signature only acknowledges receipt, instruct them to
return to their work station and write out their understanding of:
a. The Housing Authority’s concerns;
b. The Housing Authority’s expectations going forward; and
c. Any additional response they wish to share.
Avoid giving them overnight to do so, as they will illicit assistance from
others and the response may not be as genuine.
If the employee refuses to do the above, consider whether termination is
appropriate given that the purpose of the initial communication was to
allow an opportunity for the employee’s improvement, but if the employee
will not at least acknowledge the Housing Authority’s concerns and
expectations, even with the opportunity for rebuttal, then how is
improvement likely?
Avoiding EEO Complaints And
Discrimination Lawsuit
1.
Supervisors evaluating employees and making
employment decisions should be personally
familiar with employee’s responsibilities and
performance
2. Similarly situated employees should be evaluated
on the same bases
3. Employment evaluations and employee
weaknesses must be openly communicated to the
employee
4. Evaluators must be honest with the
employee
5. Employee shortcomings supporting
termination should be material and
job-related
6. Documentation noting the
employee’s weaknesses should
contain facts to support the
employer’s decision (specific
examples of work quality;
misconduct instances)
Termination
1.
Consult with human resources and/or your labor
lawyer before you terminate
1. If Mass Layoff, Issue WARN Notice
a. The Worker Adjustment and Retraining Notification Act
requires certain larger Housing Authorities to give employees
advance notice of a mass layoff.
2. Review The Personnel File
a. Did the last review reflect a failure to meet expectations?
b. If termination is not based upon a single act of serious
misconduct, does the personnel file support the decision to
terminate the employee?
4.
5.
Make Sure The Decision Is Consistent With Other Employment Decisions
a. Is it consistent
 with other decisions made by this same supervisor?
 with other decisions made by other supervisors?
 with the treatment of other employees under the same or
similar circumstances?
b. If not, can the exceptions be adequately justified?
Follow All Written And Oral Company Policies - The manager might forget
to read the Housing Authority’s handbook, but the employee’s lawyer
won’t.
6. Meet with the employee in person, unless it would be unwise or
impractical to do so
a. Have human resources or another interested supervisor or
manager present – preferably someone who is familiar with
history of case
b. In a private, non-intimidating location
7. Give Notice Of Termination and listen to employee’s response
a. Be considerate. Choose a time and place to avoid
embarrassment. Be courteous and professional.
b. Get straight to the point. Do not beat around the bush. “Today
is your last day with the Housing Authority.”
c. If you are going to provide a reason for the termination, other
than something generic like, “It’s not working,” then be honest
about the basis for the decision. For example, an advertisement
for a replacement if the employee was told the position was
being eliminated may cause a jury to believe that the
employer is lying.
d. State facts that can be proven. In order to avoid
defamation (libel and/or slander) claims, do not make
accusations of serious misconduct that cannot be proven,
particularly when it comes to criminal conduct. If an
employee is terminated due to suspicion of theft, the
termination is best stated in terms of the employee’s failure
to follow a specific company procedure. For example,
he/she withdrew petty cash without completing the proper
forms. Since lack of intent is a defense to criminal theft, it
may be easier to prove the employee’s failure to follow
procedures than the employee’s intent to steal.
e. Listen politely to the employee’s response and note
anything that may be useful in defending a lawsuit.
f. If a lawsuit is anticipated, have a witness present at the
termination meeting.
8. Do not give false but “kind” reasons for discharge
a. Do not say “we’re reducing our staff” if the real reason is poor
performance
b. Do not say that “performance has nothing to do with it” in a
layoff unless seniority was the only factor considered.
c. If giving a reason, then state all substantive reasons for
termination not just one of the three.
d. Do not recount every detail. (If you have kept notes and
memos as suggested above, they will speak for themselves if
the discharge is challenged.) For example, if prior meetings
have been held to address performance or conduct issues,
then the reason can simply be that the company has not seen
the improvement it expected.
9.
Rarely should termination be a
surprise to the employee
a. Past counseling and warnings
should put him on notice that
he is facing possible
termination
b. Even in case of immediate
termination for “serious”
misconduct, he should realize
that he has been caught for a
serious infraction
c. In a layoff, an employee may
very well be surprised and this
can not necessarily be avoided
10. Consider progressive Discipline
a. Does the employee handbook indicate there will be
progressive discipline in this context?
b. Was the employee ever counseled?
c. Is there a less severe corrective measure available?
d. Is there any documentation supporting the termination?
11. Do not get into a debate
12. Listen quietly to the employee’s response and do not re-engage. If
present, let human resources take over at this point.
Then What?
1. Make memorandum of termination meeting
2. Consider allowing a neutral to conduct an exit interview – even if
the employee voluntarily resigns.
a. Ask the employee to return all company documents and
property, including any confidential information from the
employee’s residence.
b. If asking the employee to provide a written acknowledgment
of his/her continued obligations under a non-compete or
confidentiality agreement, first make sure it is enforceable.
c. Ask the employee why he/she is leaving and ask for a written
resignation.
d. Consider offering a severance package in exchange for a
release of liability.
3. Gather together all files, notes and documents and put in safe place
4. Make sure no one gives out any information to prospective
employers or others about employee except to confirm dates of
employment and position held
a. Make this a consistent policy about references.
b. Have all inquiries come into a designated person or persons
c. Exception:
 Where there is legal or ethical obligation to report
information
 If information is to be provided to prospective employer,
make sure it is accurate and complete to avoid being
included as party in “negligent hiring” case such as in
workplace violence situations.
d. Follow Company Policy On Written And Oral References
 Does the company’s policy limit the information that may
be provided about a former employee?
 Negative references: Be wary of potential defamation
actions resulting from responses to reference checks on
former employees.
 Positive recommendations: Do not give positive
recommendations that are undeserved. It may be
difficult to defend a wrongful termination action filed by
an employee terminated for poor performance if the
supervisor gives the employee a glowing
recommendation letter, or if you are rehiring after a
layoff but don’t want the employee back.
5.
Inform Other Employees
Only the employees with a need to know should be informed
of the reasons for an employee’s termination. Those with no
need to know should simply be told that the employee is no
longer with the Housing Authority, and that the Housing
Authority wishes the employee all the best.
6. Respond To The Unemployment Claim
a. If you anticipate a lawsuit, get legal advice before responding
to a claim for unemployment benefits
b. Claimants may be disqualified from unemployment benefits if
they voluntarily resign. Resignation in lieu of termination is
not a voluntary resignation.
c.
Claimants may be disqualified from unemployment benefits if
they are discharged due to misconduct. Misconduct includes:
 mismanagement of a position of employment by action
or inaction;
 neglect that places in jeopardy the lives or property of
others;
 intentional wrongdoing or malfeasance; or
 intentional violation of a law, or violation of a policy or
rule adopted to ensure orderly work and employee safety.
Misconduct does not include an act that is in response to an
unconscionable act of a Housing Authority or superior.
d.
In an appeal hearing, the Housing
Authority should attempt to prove
facts showing the misconduct and
that the employee knew or should
have known that his/her conduct
could result in termination. And, to
win, the Housing Authority must
show that the final act that resulted
in the termination constituted
misconduct as the employer
generally will not win on an
accumulation of events theory.
7.
8.
Pay The Employee All Monies Due

Different states have different timelines.

Know your state’s policy on paying accrued but unused
vacation.
Send a COBRA Notice or State Continuation Notice
9. When responding to government agencies or in court litigation,
give consistent, accurate reason for discharge
a. If you give one reason to your state’s Workforce Commission,
another to the Equal Employment Opportunity Commission,
and still another in court, your credibility could be tarnished,
and your “latest” basis for discharge might be seen as
pretextual
b. Best way to insure consistency is to have the same person or
department provide the information
c. Where you believe there is a good chance of being sued have
your labor lawyer represent you in all administrative and
judicial proceedings relating to that employee
Managing the Manager
In spite of adopting all the
appropriate policies for legal
compliance, Housing Authorities
still wind up getting sued in
employment lawsuits based upon
the acts and omissions of their
managers or supervisors. By
better managing its management,
a Housing Authority can better
manage its risk.
Me? Sued?
 Managers are generally aware that the Housing Authority may be
sued by a disgruntled employee or former employee.
 Managers can be sued individually as well.
 “Will the Housing Authority’s attorney represent me, too?”
 “If there ends up being a judgment against me, the Housing
Authority pays it, right?”
 Employment law statutes giving rise to a private cause of action by
employees narrowly define the “employer” to include the employing
entity and not the individual director, manager or supervisor.
 Some statutes that have broader definitions pursuant to which a
responsible individual may be held personally liable.
1. Tort claims
2. Conduct outside course and scope of employment
3. Managers need to realize they should try to prevent employment
litigation
A. Statutes
 The traditional federal and state anti-discrimination statutes do
not provide for individual manager liability including Title IV,
the Americans with Disabilities Act, and the Age Discrimination
in Employment Act. This is not true for anti-discrimination
statutes in some of the other states.
 The Fair Labor Standards Act (“FLSA”) expressly allows for
personal liability to be imposed upon an individual meeting the
definition of an employer: “any person acting directly or
indirectly in the interest of an employer in relation to the
employee.” Employers are liable for amounts found due as
underpayment, an equal amount in liquidated damages and for
attorneys’ fees and costs. Willful violations are punishable by a
fine of up to $10,000, imprisonment up to six months or both.
Additionally, the 1989 Amendments provide for a fine of up to
$1,000 per violation for employers who willfully or repeatedly
violate the minimum wage, overtime requirements or child
labor laws.
 The definition of employer in the FMLA and FLSA are nearly identical.
The FMLA defines an employer to include “any person who acts,
directly or indirectly, in the interest of an employer.” Further, the
regulations promulgated under the FMLA evidence a very clear intent
that the definition of the word “employer” be treated the same under
the two statutes and that individuals be included.
 The Immigration Reform and Control Act prohibits any “person or
other entity” from knowingly hiring an unauthorized alien.
 A Housing Authority is vicariously liable for the torts of its
employees committed in the scope of their employment under
a limited number of legal doctrines, respondeat superior
being the most common. This is true even when the
employee’s tort was intentional and not specifically
authorized by the employer if it was closely connected with
the employee’s authorized duties.
 When the individual’s acts are not in the furtherance of the
Housing Authority’s business, but are motivated by personal
gratification, turning aside from employment duties to pursue
purely personal interests, the acts cease to be within the
course and scope of employment.
a. Defamation. A statement is defamatory if it tends to (1)
harm the reputation of another so as to lower him in the
estimation of the community; (2) deter third persons from
associating or dealing with him; or (3) expose him to public
hatred, contempt, or ridicule. A statement may be false,
abusive, unpleasant and objectionable to the plaintiff without
being defamatory. Expressions of opinion are protected by
the federal and Texas Constitutions. Defamation arises most
often in the employment context when the employer accused a
current of former employee of inappropriate conduct such as
theft, illegal drug use, unfair competition, incompetence or
negligence.
Libel. There is a specific statute defining libel as:
a. defamation; b. expressed in written or graphic form; c. that tends to
injure a person’s reputation thereby exposing the person to public
hatred, contempt, ridicule, or financial injury, or thereby impeaching
the person’s honesty, integrity, virtue, or reputation.
Slander. Slander is defined by caselaw as: a) defamation;
b) expressed in an oral statement; c) that is published to a third person;
and d. refers to an ascertainable person.
Libel/Slander Per Se. A statement is libelous or slanderous per se if
it unambiguously and falsely imputes criminal conduct to the plaintiff,
or if the statement is spoken of a person engaged in a particular
business or profession and charges him or her with fraud, indirect
dealing, or incapacity, and tends to injure him in his trade, occupation,
employment or business.
b. Defamation Affirmative Defenses
Truth. The truth of the statement in the publication is a
defense to a libel or slander action.
Substantial Truth. Substantial truth is a complete defense
to defamation. A statement is substantially true if it was no
more damaging to the plaintiff’s reputation, in the mind of the
average listener, than a truthful statement would have been.
Consent/Invitation. If the plaintiff invites, requests, or
consents to a statement, an action for defamation is barred.
Practical Advice for Managers
The quickest way to personal liability is to gossip and
bad-mouth employees. As a practical matter, to avoid
defamation claims make sure any statement you make
meets 2 of the following 3 requirements:
 Is it true?
 Is it kind?
 Is it necessary to say it to this person at this time?
Intentional Infliction of Emotional Distress.
Intentional infliction of emotional distress is intentional or
reckless conduct that is extreme and outrageous, and which
proximately causes the plaintiff to suffer severe emotional
distress. Liability has been found only where the conduct has
been so outrageous in character, and so extreme in degree, as
to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized
community.
Practical Advice for Managers
Being an equal opportunity jerk can get you sued.
Generally speaking, it is best to avoid screaming,
cussing, name calling, belittling, publicly dressing down,
and generally abusing your staff. Doing this to force a
resignation of a problem employee generally will not get
you or the company off the hook, and is likely to backfire.
Assault & Battery. In most states, the definition of assault
is the same whether it is the subject of a criminal prosecution
or of a civil suit for damages. Thus, a plaintiff must prove that
the defendant: (1) intentionally, knowingly, or recklessly
caused plaintiff bodily injury; (2) intentionally or knowingly
threatened plaintiff with imminent bodily injury; or (3)
intentionally or knowingly caused physical contact with
plaintiff when he knew or should reasonably have believed
that plaintiff would regard the contact as offensive or
provocative.
Practical Advice for Managers
Avoid initiating any unnecessary touching of employees:
no arm around the shoulder or waist, no neck/shoulder
rubs, and no hugs no matter how “innocent.” A kind
word and a smile will usually suffice!
False Imprisonment. False imprisonment claims in the
employment context may lie when an employee is detained for
some reason. The essential elements of a false imprisonment
cause of action are: (1) a willful detention; (2) without
consent; and (3) without authority of law. A detention may be
accomplished by violence, threats, or by any other means that
restrains a person from moving from one place to another.
Practical Advice for Managers
Unless there is concern about employee violence, let the
employee sit nearest the exit in contentious meetings.
Never stand in front of the door. Never block their exit
by placing your hand on the door.
Fraud. The elements of fraud are: (1) a material
representation; (2) that was false; (3) which was known to be
false when made or was asserted without knowledge of its
truth; (4) which was intended to be acted on; (5) which was
relied upon; and (6) which caused injury. “A promise to do an
act in the future is actionable fraud when made with the
intention, design, and purpose of deceiving and with no
intention of performing the act.”
Invasion of Privacy. A valid claim for invasion of privacy
occurs when a person “unreasonably and seriously interferes
with another’s interest in not having his affairs known to
others.”
Practical Advice for Managers
If you or your staff have the capability of monitoring
the phone calls, emails, internet usage, or on-camera
activities of other staff, keep in mind that your right to do
so generally ends once you have the information you
need for the company. Once you know the email is a love
note, you are not privileged to read it in its entirety.
Once you know the call is a personal call to their doctor’s
office, you are not privileged to listen to it in its entirety.
You can counsel for excessive use or abuse of the
company’s phone or email systems without knowing all
of these personal details. All you need to know is that the
nature of the communication (i.e. not work related) and
its duration. Once an employee begins to adjust
undergarments, oblivious to the presence of the camera,
you are not privileged to copy the tape and rerun it to
avoid boredom.
Train Them
Compliance
When training management, it is important to convey how to comply with
the law. Such training should cover the at-will doctrine and its more
commonly litigated exceptions:
Discrimination based on race, color, national origin, religion, sex,
age, disability, or Union Membership.
Retaliation for exercising rights relating to Workers’ Compensation,
the Family and Medical Leave Act, Jury Service, Compliance with a
Subpoena, Voting, Fair Labor Standards Act, OSHA, or a family law
wage withholding order, or Military Service.
Termination for refusal to perform an illegal act that would subject
the employee to criminal liability.
In addition, the training should cover such legal concepts as constructive
discharge, implied contracts, negligent misrepresentation, and fraud.
Prevention
Perhaps even more worthwhile than simply defining the various applicable
laws would be to convey how to managers and supervisors how they might
best prevent themselves and the company from being sued in the first
place. This involves setting a much higher standard of care.
a.
Dating. Any manager or supervisor who chooses to date one of their
direct or indirect reports is choosing to live dangerously. An
employee can consent to have sex with the boss, and still sue the
employer for sexual harassment. Consent, while a defense in the
criminal context, is not a defense in the civil context. The issue to the
jury is not whether the employee consented to the relationship, but
rather whether the employee “welcomed” the relationship. An
employee may testify that they only consented to the relationship
because they feared retaliation if they rejected the supervisor’s
overtures.
Practical Advice for Managers. Either don’t date
within the workplace, or at the very least save all the
Hallmark cards and emails that prove the attention
was welcome.
Fraternizing with Staff. In days of old, management
simply did not fraternize with staff. While our society has
moved away from such harsh class distinctions within the
workplace, the courts continue to remind us that perhaps
there was a grain of logic to this old school thinking.
Managers and supervisors will be held to a higher standard.
No where is this more obvious than in the law of harassment
where under certain circumstances involving a supervisor,
strict liability to imposed. Even where the Housing Authority
is fortunate enough to avoid imposition of strict liability, it is
still liable even if it acted reasonably in its efforts to prevent
harassment and then promptly corrected the problem when
the employee reported the supervisor’s harassment.
Consequently, when the recently promoted first line
supervisor joins the “gang” at the local bar, slams back a
couple of margaritas, tells a few off-color jokes, and then flirts,
the potential outcome is very different than it would have
been last week before his or her promotion.
Practical Advice for Managers
Recognize that the management hat never comes off
even if you want it to. So don't get so casual with
employees that you forget the position you hold.
Recognize that by being around the employees when
they are all letting their guard down, may obligated
you to report the conduct that you observe, even if off
premises and during off hours.
Insufficient Documentation. There are too hurdles that
must be overcome by defense counsel in almost every
employment lawsuit: the lack of documentation and the
existence of inconsistent documentation, both which can
typically be traced directly back to the company’s managers
and supervisors. Frankly, there is no viable excuse for a lack
of documentation of an ongoing problem that ultimately
results in termination. Nevertheless, the lack of
documentation is commonly explained by the following three
management excuses:
The supervisor says: “I’m too busy to document
everything.”
 The jury hears: “My time is far too valuable to waste
on giving such a lowly peon any direction or
warning.”
 (Result: Well, you arrogant jerk, you managed to find the
time to terminate him, didn’t you?)
Practical Advice for Managers. Set up an email folder
for each report where you store “kudos” and
complaints from customers and coworkers. BCC this
folder when you chastise an employee via email.
Forward to this folder any emails and/or work product
from the employee that will serve as an example of
exceptional work or poor work.
Practical Advice for Managers
Make the employees document the bad stuff. After
chastising the employee for being late to a meeting,
Instruct the employee: “Send me an email confirming
your understanding of the importance of being on time.”
After a meeting to address a performance issue, email
the employee stating: “By Friday, I want you to shoot
me an email outlining our discussion about what went
wrong at the trade show and what I expect you to do
differently next time. That way I’ll know we’re on the
same page.” File the self-documenting emails in your
email folder for that employee. Now you have proof of
the discussion and it is documented in the employee’s
own words.
Practical Advice for Managers
Make the employee document the good stuff. Require
that they keep a brag book that contains thank you
notes from customers, coworkers, other managers,
articles they have published, work they have done
that goes beyond their job description,
accomplishments, voluntary training, etc. Brag
books should be presented to you before review time
and in conjunction with any request for a raise or
promotion.
The supervisor says: “I orally warned him dozens of times!”
 The jury hears: “Because I was too lazy to document, I
just decided to skip straight to termination.”
 (Result: This makes the plaintiff’s testimony that you never
warned him more credible, because otherwise, you would have
put it in writing if you had really said it that often.)
Practical Advice for Managers. News flash. If you have
said it that many times, they either don’t get it (in which
case putting it in writing might just help), or they get it,
but just don’t care. Either way, documentation is the
logical next step toward solving the problem through
improvement or termination.
The supervisor says: “I didn’t want to make a federal
case out of it.”
 The jury hears: “It wasn’t that big a deal.”
 (Result: So if it wasn’t important enough to document,
then how can you expect me to believe that it was
important enough to merit termination?)
There is a common misperception among managers and
supervisors that documenting a concern is a heavy handed way to
manage. On the contrary, terminating without prior
documentation is far more heavy-handed. By the time the
termination meeting occurs, the employee ought to already know
what is going to be said, why it is going to be said, and have already
been seeking employment elsewhere.
Practical Advice for Managers
It is much easier to say to someone, “You’re fired,”
when you previously looked them straight in the eyes
and said, “I don’t want to fire you, but I will if this
isn’t addressed.” It is also easier to testify before the
jurors if in your final warning meeting, in the
presence of human resources, you actually suggested
that the employee consider looking for employment
elsewhere if he/she felt the expectations as you
outlined them could or would not be met.
Inconsistent Documentation. Ask a room full of
employment defense attorneys what evidence is most
commonly the most difficult to overcome, and almost
universally they will tell you, “the plaintiff’s annual
evaluations.” This is because they typically provide proof for
the terminated employee that one or more of the company’s
managers and/or supervisors rated their performance as
having met or exceeded the company’s expectations for years.
The defense starts out having to back-peddle in front of the
jury to try to “explain away” years of written documentation
that contradicts the now proffered reason for the termination.
It is important to analyze why employees who meet or exceed
expectations are being terminated. It could be the result of
post-review misconduct or a sudden spiraling performance
problem. It is more likely that they weren’t really meeting
expectations at the time of the review:
The supervisor says: “That’s just grade inflation.
Everyone does it so their staff gets the best raises.”
 The jury hears: “I lied for my team.”
 (Result: So you’ll lie for the company too.)
The supervisor says: “I prefer to focus on positive
reinforcement and he did get a little better right
before that review.”
 The jury hears: “I’m a coward and would rather be
popular than honest with my employees.”
 (Result: So you told him that he was doing well and then
fired him? That makes no sense at all.)
Unfortunately, many Housing Authorities face grade inflation in their
evaluation process and decent employees are rated as “exceeds
expectations” and the poor employees are rated as “meets
expectations.” One way to dissuade managers and supervisors from
grade inflation is to require that any rating other than a “meets
expectation” must be justified by a written paragraph or it will not
stand. The generally unwillingness to take the time to justify the higher
rating should force the rating average back to the middle point.
Practical Advice for Managers
Before giving an overall “meets expectations” rating
on a review, ask yourself if you can fathom over the
next 12 months wanting to go to Human Resources
about firing that employee. If so, then chances are
pretty good that this employee is not meeting your
expectations in some significant way. That had better
be reflected in the review or you may have difficulty
convincing Human Resources to approve the
termination, and even more difficulty convincing a
jury that your decision to terminate was legitimate.
Imagine trying to explain to a jury why you would
tell someone that in your opinion they are doing a
decent job and then turn around and fire them within
a matter of months.
Questions
Contact Information
Francine Breckenridge
Strasburger & Price, LLP
720 Brazos St., Suite 700
Tel. (512) 499-3630
[email protected]
© STRASBURGER & PRICE, LLP. Materials contained within this presentation provide information on general legal
issues and are not intended to provide advice on any specific legal matter. This information is not intended to
create, and receipt of it does not constitute, an attorney-client relationship. Every matter is different.