From the First Day to the Last: Best Practices for Employee Orientation and Legal Terminations

1. From the First Day to the Last: Best Practices for Effective Employee Orientation and Lawful Terminations Kimberly W. Daniel, Esq. and Jonathan M. Sumrell, Esq. Hancock, Daniel, Johnson & Nagle, P.C. May 11, 2016

2. Overview • Legal Issues Relating to Employee Orientation • Steps for Carrying out a (Relatively) Risk Free Termination

3. Orientation, Compliance and Practice Protection .

4. Orientation Orientation is crucial: • Set the tone for employment • Many essential steps that should be followed for legal compliance and defense

5. Background on I-9s • The Immigration Reform and Control Act (IRCA) prohibits employers from knowingly hiring an individual who is not authorized to work in the U.S. • IRCA includes penalties for employers that fail to properly verify work authorization. • Form I-9 is used by employers to verify work authorization in compliance with IRCA.

6. I-9 Obligations • The Rule: All U.S. employers must have a Form I-9 on file for all current employees. • The Exceptions: No Form I-9 is required for: • Employees hired on or before November 6, 1986, • Casual domestic service employees in a household who work on a sporadic, irregular or intermittent schedule, • Properly classified independent contractors, • Employees working outside of the U.S.

7. I-9 Enforcement • A shocking number of employers still fail to follow I-9 rules. • Millions of dollars in fines are assessed every year against employers following I-9 inspections.

8. I-9 Enforcement “Knowing Hire” Fines

9. I-9 Enforcement Substantive/Uncorrected Technical Violation Fines

10. Completing the I-9 Section 1 Section 1 of the form should be completed and signed no later than the 1st day of employment.

11. Completing the I-9 Section 1 • Section 1 information includes: • Name. Including first and last name and middle initial. • Other names. Such as maiden name. • Address. No post office boxes may be used. • Date of Birth. • Social Security number. Optional unless employer uses e-verify. • Email address & phone number. Optional. • Status. The employee must indicate their citizenship/immigration status and sign and attest the information is accurate.

12. Completing the I-9 Even though it is the employee’s role to complete Section 1, the employer must verify that it is complete.

13. Completing the I-9 Section 2: Employer Certification Section 2 must be completed by the employer no later than 3 business days after employee starts working. • Employer should ensure employee fully completed Section 1 before Section 2 is completed.

14. Completing the I-9 Section 2: Employer Certification • Verify work authorization documents. • Form I-9 includes a list of acceptable documents. • The documents must be originals (not photocopies). • Unexpireddocuments that appear genuine must be accepted.

15. Completing the I-9 Where to Send Form I-9 Once Form I-9 is completed and acceptable documentation is obtained, where does an employer send it? NOWHERE (employers should keep it in their own files for three years after the date of hire or for one year after employment is terminated, whichever is later)

16. I-9 Enforcement Inspection Process • Your practice will receive notice of an inspection from Immigration and Customs Enforcement. • Notice includes requirement that I-9s be provided within 3 business days. • Agents will review I-9s for technical or procedural violations or knowing violations.. • Discrepancies will be reported back to the practice and fines will be assessed.

17. Provide Employee Handbook The Importance of Handbooks • Opportunity to provide information to about company history, culture and goals • Inform employees of rights and obligations 3. Gives supervisors/managers clear standards and policies

18. Provide Employee Handbook The Importance of Handbooks • Demonstrates to administrative agencies and courts a commitment to follow employment law • Provides valuable affirmative defenses and safe harbors to employers

19. Provide Employee Handbook The Danger of Handbooks • Virginia law presumes that an employment relationship is at-will • Presumption may be defeated by evidence of a contractual relationship

20. Provide Employee Handbook Handbook Acknowledgment Include a separate handbook acknowledgment sheet

21. Provide Employee Handbook Handbook Acknowledgment Acknowledgement should state: • Handbook is not a contract • Employee has received and will abide by handbook and any revisions • Employment is at-will and that status may only be changed by the practice manager (or some other listed management official)

22. Provide Employee Handbook Handbook Acknowledgment • The Handbook and acknowledgment should be presented to the employee on the first day of employment. • What if employee refuses to sign the acknowledgment?

23. Harassment Training Create Defenses for Employer to Harassment Claims Federal law prohibits the following: • Hostile work environment: Unwelcome conduct based on a protected characteristic (such as race, religion, age) that unreasonably gets in the way of an employee’s work performance, or causes an intimidating or hostile work environment. • “Quid pro quo” harassment: An employee agreeing or disagreeing to engage in sexual conduct affects decisions about his/her employment.

24. Harassment Training Potential Legal Defense A practice can defeat a claim of harassment by showing that: • The practice takes reasonable care to prevent/correct harassment, and • The aggrieved employee unreasonably failed to take advantage of opportunities to prevent/correct harassment, and • No tangible employment action was taken against the aggrieved employee.

25. Harassment Training Potential Legal Defense • Defense available when practice can show: • Effective anti-harassment policy; • Employees trained on the definition of harassment, the anti-harassment policy and the process for lodging internal complaints

26. Harassment Training Training and Acknowledgment • Harassment training completed early during orientation is a good option. • Require signed acknowledgment that employee attended the training and has reviewed the practice’s anti-harassment policy.

27. Bloodborne Pathogen Training . Practices should include bloodborne pathogens training as part of their orientation process for employees with occupational exposure to blood/other potentially infectious materials.

28. Bloodborne Pathogen Standard . • An estimated 2/3 of OSHA citations against medical practice are for violations of the bloodborne pathogen standard. • Standard establishes requirements for protecting against exposure to blood and other potentially infectious materials (OPIM).

29. Bloodborne Pathogen Training . Requirements include: • Establish an exposure control plan • Train employees on the contents of the exposure control plan and other bloodborne pathogen policies

30. Bloodborne Pathogen Training . • Bloodborne pathogens training must occur at the beginning of assignment to position with occupational exposure and annually thereafter. • Trainer must be available to answer questions. • A copy of training program and list of attendees must be retained. • Attendees must sign written acknowledgment of training.

31. Checklist of Other Essential Orientation Items . • Job description. • Review of compensation, pay dates and payment method. • Summary of benefits. • Information of time reporting procedures and work schedule information. • Safety information. • Review of technology use and policies. • Required federal and state forms (tax forms, new hire reporting, child labor work permit)

32. Steps for a (Relatively) Risk-Free Termination .

33. Termination • Termination of employment is a legal minefield for employers. • Numerous federal and state laws apply to termination decisions.

34. Termination Risks Title VII of the Civil Rights Act of 1964 • 15 or more employees. • Prohibits discrimination in employment based on: race, color, religion, sex or national origin. • Applies to all aspects of employment relationship including termination. • Includes prohibition on retaliation. • Claims filed with the Equal Employment Opportunity Commission (EEOC), then private litigation.

35. Termination Risks Age Discrimination in Employment Act • 20 or more employees. • Prohibits employment discrimination against individuals 40 and older. • Applies to all aspects of the employment relationship including termination. • Includes prohibition on retaliation. • Claims filed with the EEOC, then private litigation.

36. Termination Risks Americans with Disabilities Act • Applies to employers with 15 or more employees. • Prohibits employment discrimination against “qualified individuals with a disability.” • Applies to all aspects of the employment relationship including termination. • Includes prohibition on retaliation. • Claims filed with the EEOC, then private litigation.

37. Termination Risks Virginia Human Rights Act • Prohibits employment discrimination on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, or disability. • Covers employers with 6-14 employees. • Includes prohibition on retaliation. • Claims filed with the Division of Human Rights, then litigation.

38. Termination Risks Wrongful Discharge Virginia common law claim which arises employee is terminated in violation of Virginia’s public policy, such as: • Discharge of employee for refusing to violate a criminal statute. • Discharge of employee for exercising right given by statute. • Discharge of employee in a way that violates public policy expressed in a statute that is designed to protect employee and those like him.

39. Termination Risks Who is Liable? • The employer is potentially liable under most employment discrimination statutes. • But the employer and the individual supervisor who makes the termination decision may be liable for wrongful discharge in Virginia.

40. Termination Problem & Solution • Problem: There is always legal risk when firing employees, but a practice should not feel obligated to keep employees with performance or conduct issues on the payroll. • Solution: Follow clear process to reduce the likelihood of legal exposure for you and the practice.

41. Steps to a (Relatively) Risk-Free Termination • Develop/Enforce Clear Policies • Create and Retain Documentation • Make/Review the Termination Decision • Prepare for the Termination Meeting • Conduct the Termination Meeting • Complete Final Follow-Up Steps

42. Step 1 Develop/Enforce Clear Policies Employers should create a clear progressive discipline policy • Typical progressive steps for infractions are verbal warning, written warning, suspension, discharge • Should also specify that egregious misconduct may result in immediate suspension or discharge

43. Step 1 (cont’d) Develop/Enforce Clear Policies • Ensure employees are informed of the policy • Include the policy in the employee handbook • Give employees access to a copy of the discipline policy on office intranet or otherwise • Enforce the discipline policy consistently

44. Step 2 Create and Retain Documentation • Employers should ensure that all significant actions regarding an employee are documented throughout the employment relationship • Documentation should be kept in a separate, confidential personnel file and access should be limited to those who need it

45. Step 2 (cont’d) Create and Retain Documentation The importance of creating & retaining documentation: • Supports the termination decision if challenged • Keeps the employee apprised of his/her performance and progress • Failure to retain documents could weigh against employer if matter is litigated as missing documents look suspicious to a court/jury

46. Step 2 (cont’d) Create and Retain Documentation Documentation should include: • Regular, accurate performance evaluations • Written warnings or other evidence of discipline • Written details of performance improvement plans

47. Step 3 Making/Reviewing the Termination Decision • Once the initial termination decision is made, it should be reviewed and approved by a member of human resources or another designated practice official • Consider suspending the employee while the termination decision is pending • This review serves as a safeguard against unlawful, rash or emotional termination decisions by a manager • Also may insulate manager from personal liability in a wrongful discharge action

48. Step 3 (cont’d) Making/Reviewing the Termination Decision Reviewing official should: • Check that the appropriate documentation is present in the employee’s file, • Ensure that the progressive discipline process was followed (if applicable), and • Investigate and verify that the decision to terminate is not based (or could not appear to be based) on unlawful or discriminatory grounds • Further interview witnesses if necessary

49. Step 3 (cont’d) Making/Reviewing the Termination Decision Review should be particularly thorough if any of the following are true: • Missing performance evaluations or other documentation, • Not all steps of progressive discipline followed, • Existence of long term employment relationship, • Documented satisfactory performance in the past, • Evaluations indicate sudden decline in performance, • Employee is a member of a protected class, or • Coworkers with similar performance/histories treated more favorably.

50. Step 3 (cont’d) Making/Reviewing the Termination Decision • If reviewing official approves of the termination decision, a face-to-face meeting should be scheduled • If in doubt—seek advice before acting!