Effective Approaches to Discipline and Discharge: Employment At-Will

THE JOB STOPS HERE: EFFECTIVE APPROACHES TO DISCIPLINE AND DISCHARGE HFT 2220 Chapter 9

EMPLOYMENT AT-WILL: • Reasons • Good Reason • Bad Reason • No Reason • Timing • Any time

Race Color National Origin Religion Gender/Pregnancy Age Disability Veteran Status Marital Status Sexual Orientation ANTI-DISCRIMINATION:

ANTI-RETALIATION: • Jury Duty • Whistleblower • FMLA • Attending School functions • Workers’ Compensation • Voting

What’s Left? Employment at-will • Reasons Good Reason • Timing Bad Reason No Reason Any Time

JURY’S PERSPECTIVE Fairness = Progressive Discipline

The Defensible Termination GOODREASON FAIRNESS + = DEFENSIBLE

COMMANDMENTS OF DEFENSIBLE DISCIPLINE/TERMINATION • Communicate expectations (handbook, in-house papers, etc.). -- NO SURPRISES. • Consistency. • Documentation.

DOCUMENTATION • Plaintiffs try to build a case, so should you. EVERYTHING YOU SAY CAN AND WILL BE USED AGAINST YOU.

DOCUMENTATION • Document everything (including verbal counseling) • Document on the day the incident occurs • Don’t be shy about confronting the situation! Make sure the employee is aware that there is a problem.

DOCUMENTATION • Write clearly – write for others • Documentation should never include insulting or derogatory language.

DOCUMENTATION • Should include date. • Documentation should be signed by the person who wrote it. • Point to specific examples with dates. • Cite prior documentation.

DOCUMENTATION • Cite policies, if any. • Always discuss documentation with employee. • Give the employee a chance to respond, your information on a situation could be incomplete or incorrect.

Timely & Consistent Discipline is a POSITIVE ACTION • Create “limits” for employees • Improve morale to see both good behavior noted & bad behavior addressed

Timely & Consistent Discipline is a POSITIVE ACTION • QUICKLY - Remove poor performers, before a wrongful discharge claim, negligent retention or wc claim can occur • More lawsuits/charges occur because employers do not fire enough employees – not because they term to many.

Conducting Discipline/Termination Conferences • Be business-like. • Treat the employee with respect and dignity. • Be brief, but not brutal. • Do not generalize or paint with a broad brush. Use examples. • Stick to facts/not opinions.

Conducting Discipline/Termination Conferences • Plan for the discussion ahead of time. • Rehearse termination meeting (make sure rationale sounds logical). • Don’t wait until remarks have lost relevance. • Conduct in private.

Conducting Discipline/Termination Conferences • Present a positive situation if at all possible. • Do not debate. • Do not apologize.

ACTION STEPS TO TAKE TODAY • Use investigations to limit litigation exposure; • Use suspensions to properly investigate • Document carefully; • Be fair; • Review relevant Company policies; • Review treatment of similarly situated employees

Effective Approaches to Discipline and Discharge: Employment At-Will