Transcript How to Legally Terminate without a Lawsuit

How to Legally
Terminate without a
Lawsuit
Marcus C. Saldana
Human Resources
Director
HEAD START of
Greater Dallas, Inc.
Dallas, Texas
Litigation Case
Attorney hourly rate of $275.00 to $475.00 per hour
Walmart is sued 2 to 5 times each day somewhere in
the U.S.A.; discrimination to workers compensation,
slips and falls.
Wheel chair bound job applicants sues Walmart for
ADA violation – 3,583,399. New Mexico suit by EEOC
• Plaintiff was in a wheelchair his application was
rejected six times. The personnel manager
informed him that “no openings for a person in a
wheelchair”, on his last attempt he was informed
the store “already had one of his friends in the
garden center”.
Alaska man subject to racial harassment while
employed at a McDonald’s inside Walmart $58,000
• Signaled out for frequent intrusive searches of his
personal carry bag and person.
Employee Discharged after filing worker’s
compensation claim - $630,000 Texas award Cruz vs.
Walmart
• Plaintiff sues for wrongful termination when the
store fired her for filing a worker’s compensation
claim.
Effective Termination
Termination can be stressful for everyone involved ,
including the person doing the termination.
Goals for a termination:
Two goals to have in mind
a. The sending of a positive message as possible
as well as to the rest of the workforce
b. The protection of the organization from a
lawsuit, EEOC
Both Goals Attainable:
• Termination is never pleasant – handle it with kids
glove
• Do not be rude or insulting
• Stick to facts give employee time to ask questions
• Don’t argue with employee or allow supervisor to
give input
KEYS TO AN EFFECTIVE
TERMINATION
Document; Document; Document
- Key to documentation is accuracy
- Not every detail needs to be included
- Describe the conduct not the incident
- Describe the objectionable conduct and not the incident
- Avoid generalized titles: insubordination and bad attitude
- Be specific on the behavior
- Common mistakes in documentation:
• failure to document until the last incident
• use nouns and verbs
- Use absolute expression unless completely accurate
- Failure to review past documentation:
• always review past performances, disciplinary actions, etc.
• always review previous notices from a previous supervisor
- Unsupported reference to standards
• identify the particular standard reference to in the disciplinary
notice
• how was the standard communicated to the employee
Eight Steps to a Smooth
Termination
1.
Follow progressive discipline policy closely:
Lawyers, government agencies will look at the
following:
- Performance problem did you give the employee
an opportunity to improve
- Violation of a work rule, was it based on
appropriate discipline on your policies and past
practices.
- Severity of the employee’s action. If you did not
follow your policies as written, do you have
business related reasons to justify your decision.
2.
Treat employees’ as consistently as possible:
- Courts will look to see if you treated similar
situation/employees in a similar manner
(employees with similar jobs, performance history
length of employment
3.
Investigate thoroughly before terminating in cases
of misconduct. Investigation should provide the
reason and that you followed your personnel
handbook.
4.
Analyze the risk for legal claims; consider the
following:
- Discrimination: was employee treated fairly
consistently
- Member of a protected class i.e. female, disable,
minority, over 40, etc.
- Wrongful discharge: policies were not
consistently applied
- Violations of FMLA: was employee terminated
while on leave
- ADA: failure to accommodate
- Wage and hour, overtime wages not properly
paid.
Disciplinary Policy
Verbal Conference
Documents a verbal conference between the employee and
supervisor. The written Performance Correction Notice and a Plan
of Action must be submitted to the Human Resources Department
for documentation and placed in the employee’s personnel folder.
Written Reprimand
The written Performance Correction Notice and Plan of Action
document will be placed in the Employee's Personnel Folder.
Probation
Probation must have prior approval of the Associate Head Start
Director. The written Performance Correction Notice and Plan of
Action document will be placed in Employee's Personnel Folder.
Suspension
Notice to suspend must have prior approval of the Head Start
Director. Suspensions may be with pay at the discretion of
management.
Termination
Notice to terminate, with prior approval of the Head Start Director,
must be submitted to the Employee in writing by the Human
Resources Department. Such notice will include such specific and
individual reasons for said action and must further advise the
Employee as to his or her right of appeal in accordance with the
Agency's personnel policies. Should the Employee elect to
appeal, the appeal should deal only with the charges as outlined in
the disciplinary action. The effective date of termination will
remain in effect regardless of the hearing date established by the
Chief Executive Officer. If the appeal is found in favor of the
Employee, the Employee will be reinstated with back pay and
continuation of all fringe benefits. The decision of the Chief
Executive Officer is final, subject only to Policy Council approval in
accordance with Section 2.B above.
Head Start of Greater Dallas, Inc.
PERFORMANCE CORRECTION NOTICE
Employee Name: ________________________________ Date Presented: _________
Center/Dept:________________________Supervisor:__________________________
Employee SS#:_______/______/___________
Type of Disciplinary action:
__Conference* __Written Reprimand*
__Probation*
__Suspension * (length)
__Termination
Subject:
________________________________________________________________________
___ Policy/Procedure Violation
___ Behavior/Conduct Infraction
___ Performance Transgression
___ Absenteeism/Tardiness
________________________________________________________________________
Prior Notifications___________________
Level of Discipline
Conference ______
Reprimand ______
Probation _______
Suspension ______
Date
________
________
________
________
Subject
____________________________________
____________________________________
____________________________________
____________________________________
Incident Description and Supporting Details: Include the following information: Time, Place, Date
of Occurrence, and Persons Present.
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
Corrective Action Plan
1.
Measurable/Tangible Improvement Goals:_____________________________
________________________________________________________________________
2.
Training or Special Direction Provided: _______________________________
________________________________________________________________________
3.
Interim Performance Evaluation Necessary?
[ ] Yes
[ ] No
If yes, please explain______________________________________________________
*A Plan of Action must be submitted with each disciplinary action.
4.
In addition, I recognize that you may have certain ideas to improve your performance.
Therefore, I encourage you to provide your own Personal Improvement Plan Input and
Suggestions: _________________________________________________________
________________________________________________________________________
________________________________________________________________________
_________________________________________________________________________
(Attach additional sheets if needed.)
Outcomes and Consequences:______________________________________________
________________________________________________________________________
Positive:___________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
Negative:_________________________________________________________________
_________________________________________________________________________
Schedule Review Date: _______________________________________________________
Employee Comments and/or Rebuttal
_________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
________________________________________________
(Attach additional sheets if needed.)
___________________________________________
Employee Signature
________________
Date
_________________________________
Name (Witness, if employee refuses to sign) Date/Time
______________
________________________________
Manager/ Supervisor
______________
Date
_________________________________
Department Head
______________
Date
________________________________
Human Resources Director
______________
Date
__________________________________
CEO/Head Start Administration Director
_______________
Date
Grievance & Appeals
Procedures
Appeal Procedure
Step 1
Appeal to Chief
Executive Director
This step in the appeal
procedure must be
submitted, in writing, by the
Employee or person
appealing the action, within
five working days of the date
of the action.
The Employee must submit
a copy of the appeal to the
Human Resources Director,
with a copy to the Chief
Executive Officer and Head
Start Director. The Human
Resources Director will notify
the supervisor.
The effective date of
termination will remain intact
regardless of the hearing
date established by the Chief
Executive Officer. The
decision of the Chief
Executive Officer is final,
subject only to Policy Council
approval in the case of a
termination.
Grievance Procedures
Step 1
Grievant to
Immediate
Supervisor
Step 2
Grievant to
Associate Head
Start Director
Step 3
Grievant to Head
Start Director
Grievances may only be filed as a
result of a written disciplinary
action and other adverse actions
not related to suspension or
termination.
Each step in the grievance
procedure must be submitted, in
writing, by the Employee or person
appealing the action, within five
working days of the date of the
action.
The Employee must submit a copy
of the grievance to the Human
Resources Director and to the
supervisor who implemented the
action, as well as to the Head
Start Director.
If the grievance is found in favor of
the Employee, all documents
relevant to the grievance will be
destroyed. If the grievance is
found in favor of management, all
documents will be filed in the
Employee’s Personnel folder to
remain for a period of two years.
Eight Steps to a Smooth Termination
CONTINUED
5.
Personnel file should reflect the reason for termination such as
performance appraisals, which should reflect problems,
counseling memos, etc.
6.
Plan the termination
- Timing is every thing; should take place
- Termination should be private
- Who attend? Supervisor and Human Resources
representative or Department Head to act as a witness.
- Have paperwork ready: Cobra, health insurance, correction
notice and final pay check if possible.
7.
Facts: explain to employee the factual reason(s) for the
termination. Don’t try to “soften the blow” i.e. “I did not want to
terminate but my supervisor said to do it”. Don’t rely on “at will”
relationship.
8.
Limit discussion of the termination. Have letter ready.
Date
Dear:
This is formal notification that your employment with Head Start of
Greater Dallas, Inc. is being recommended for termination pending
approval of the Policy Council. The reason is for violation of the following
minimum standards 746.1201(1), 74602801(3).and 746.2805(6). You
violated all the above standards when you instructed a child to put sand
on the head of another child as a form of disciple (see attachment). In
addition you also violated the Workplace violence policy when you
followed the Family Advocate into her office and begin yelling at her.
When the family Advocate walked away you should have brought the
matter to your supervisor instead of following her into her office. Based
on there two incidents we have recommended your termination.
Your current employment status will continue as “Suspension without
Pay” effective immediately, in accordance with Section 2.b.b of the
employee handbook. This suspension is in effect until such time that the
Policy Council can give consideration to the recommendation for
termination at the next Policy Council meeting. You will be notified as to
the decision of the Policy Council after their consideration has been
made.
You have the right to appeal this action directly to the Chief Executive
Officer, as outlined in your Personnel Handbook. If you wish to appeal, it
must be submitted in writing to me within five working days of the date of
this letter. Please sign below indicating that you have received a copy of
this letter.
Sincerely,
Site Manager
_______________________
Employee Name
__________________________
Date
Termination Checklist

All normal steps of progressive discipline have been completed,
and there is no realistic hope for improvement.

The employee had been repeatedly counseled and assisted
regarding performance deficiencies, but there is no realistic hope
for improvement.

All alternatives such as transfer and retraining have been
considered.

All steps have been fully documented and records included with
the recommendation for discharge.

The recommendation for discharge and all supporting documents
have been submitted to Human Resources.

Discharge has been authorized by a signed statement by the
Human Resources Director.

The employee has been given written notice of his/her termination.

Payroll has been notified of the termination.

All necessary security items and other company property have
been obtained form the employee

The employee has been referred to Human Resources for further
processing.

All records of this case are forwarded to Human Resources.
Exit Interviews
All employees who resign or are terminated should have an
exit interview.
Must be properly documented.
Employees who fail to raise employers misconduct as an
issue during an exit interview, ADA or other claim raised
later may loose credibility.
Exit Interview
Name: ____________________Hire Date: ___________
Position: __________________ Termination Date: ______
Manager: _________________ Center: ______________
1.
What made you decide to leave your current job?
2.
What did you like most about your job?
3.
What did you like least about your job?
4.
Do you feel training opportunities were made available to you?
5.
Do you think your supervisor was fair and reasonable? If not, explain?
6.
Do you believe you were given access to and realistic consideration for
promotional opportunities within the agency? If not, explain?
7.
Do you feel you were properly trained for the job you were performing?
8.
Did you have the appropriate equipment and resources to perform your
job?
9.
Was the job realistically presented to you when you were hired or most
recently changed positions?
10.
Were you satisfied with the employee benefits that were provided?
11.
Was your salary satisfactory for the job you were performing?
12.
Are there any changes that the agency could have made to prevent you
from leaving?
13.
Do you feel that during the orientation you received adequate training?
(Policy, Procedures, and Benefits explanation)
Other Areas of Concern:
FMLA
-12 week of job protection
- Employer may request medical certification
- FMLA can include Workers’ Comp
ADA
- Prevention to decreasing liability
HEAD START of Greater Dallas, Inc.
REQUEST FOR FAMILY OR MEDICAL LEAVE
Name_________________________ Date_____________________
Dept./Center____________________Job Title__________________
Employee#_____________________Hire Date_________________
Request for family or medical leave must be made at least 30 days prior to the
date requested leave is to begin.
I request the leave for the following reason:
*Birth of child - time to care for the baby: Length of leave:_____________________
Start date:_________________________ Expected return date:________________
Expected date of birth:_______________ Actual date of birth:_________________
*Care for my spouse, child or parent:
Length of leave:____________________
Start date:_________________________ Expected return date:________________
*Personal serious health condition:
Length of leave:____________________
Describe:_____________________________________________________________
Start date:_________________________ Expected return date:________________
*Worker’s Compensation
Start date:_________________________ Expected return date:________________
(Doctor slip is required)
REQUEST FOR FAMILY OR MEDICAL LEAVE - PAGE 2
Have you taken a family leave in the past 12 months? Yes_____ No_______
If yes, how many work days?_____________
I understand and agree to the following conditions:
1) I have worked for Head Start of Greater Dallas for at least one year and have
accumulated 1,250 hours in the rolling 12 months.
2) If I fail to return to work after the approved leave expires, and if the employer
requires it, I will be financially responsible for the medical insurance premium
the company paid while I was on leave.
3) If I fail to return within the 12 weeks of FMLA leave I understand my position
may be staffed as required by agency’s needs.
4) During my family/medical leave, I may pay my portion of the insurance
premium either on a biweekly or monthly basis. If I do pay my portion during
my FMLA the agency will deduct all the unpaid insurance premium from my
pay check.
5) After 12 weeks of leave, if I do not return to work within three days or contact
the Human Resources Department on the date intended, it will be
considered that I have abandoned my job.
6) I will be required to exhaust my paid annual leave and sick leave as part of my
12 weeks of leave.
Employee Signature:______________________ Date:____________________
Supervisor/Manager:______________________ Date:____________________
H.R. Department:_________________________ Date:____________________
Sexual Harassment
Sexual Harassment
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Supreme Court has ruled that unwelcome sexual conduct creating a
hostile and offensive work environment violates Title VIII of the Civil
Rights Act.
To violate Title VIII the conduct must be sufficiently severe or pervasive
to alter the condition of employment
Barber vs. John Morrel & Co. 382 F.3d (8th Cir 2004)
chronicled years of blatant sexual harassment
Worth vs. Tyler F.3d 249 (7th Cir 2001)
created hostile work environment by supervisor
Cenos vs. Steel Technologies, Inc. 288 F.3d 7th Cir. 2002)
no magic number for slurs to create
Steps for prevention
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Create and distribute formal policy
Have all employee trained and document training with employee
signature for documentation .
Select a key person to oversee policy.
Train all supervisors and managers.
Conduct immediate investigations
Evaluate the investigation findings for decision to be made.
Take appropriate action: including plan of action
Communicate the results to the involved employees on a need to know
basis.
Ensure that recommended disciplinary action is implemented to prevent
any future occurrence.
Remembering you should take action even for offensive conduct that
does not meet the legal standards.
DEFAMATION
-
Elements of a Defamation Claim
◦ publication of a false statement
◦ to a third party
◦ the person about whom the statement was made
damages as a result of the publication
References
Personnel Services, Inc.
Employment Law News and
Services