User:Legalissuesmptc

Hiring and Firing Guidelines

There are many guidelines that need to be following when hiring or firing an employee. Specific laws have been established to help defer discrimination when hiring and firing. Most managers or supervisors will have to conduct some type of disciplinary action while in their career. The information listed below highlights points that need to be considered when hiring or firing an employee.

The Legal Issues class at Moraine Park found all of these sources to be credible and informational to the writing of this Wiki. The writers of this article agree with the information presented.

Employment Laws

The Federal Laws Prohibiting Job Discrimination for Hiring and Firing are:

•Title VII of the Civil Rights Act of 1964 (Title VII)

o Prohibits employment discrimination based on race, color, religion, sex, or national origin.

•The Equal Pay Act of 1963 (EPA)

o Protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination.

•The Age Discrimination in Employment Act of 1967 (ADEA)

o Protects individuals who are 40 years of age or older.

•Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA)

o Prohibits employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments.

•Sections 501 and 505 of the Rehabilitation Act of 1973

o Prohibits discrimination against qualified individuals with disabilities who work in the federal government.

•Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA)

o Prohibits employment discrimination based on genetic information about an applicant, employee, or former employee.

•The Civil Rights Act of 1991

o Provides monetary damages in cases of intentional employment discrimination.

Employment Law in “At-Will” States

The majority of states in the U.S. have “at-will” legislation to protect employers from wrongful termination lawsuits. Employment law--even at-will employment--can be tricky. Federal laws and other anti-discrimination legislation provide important exceptions to the at-will employment contract. The “Three Ds” method for hiring and firing employees provides an excellent backdrop for explaining the do’s and don’ts of employment law in an at-will state. These are: discrimination, documentation, and delivery. Anti-discrimination policies necessitate thoughtful management planning that begins in the interview process and continues until the termination of the employment contract. For this reason, employers will benefit from remembering the three Ds of hiring and firing employees.

What is the purpose of documentation? No discussion of progressive discipline can begin without a thorough exploration of documentation. The most essential guideline for handling any and all disciplinary action is documentation. When followed regularly, accurate and thorough documentation will add authenticity and credibility to the events leading to the disciplinary interview and will assist the firm in defeating any claims of discrimination brought by the employee. Furthermore, documentation will make it difficult to doubt the motives of the manager who did the firing. Documentation is something that all supervisory personnel should be thoroughly trained in order to sufficiently conduct disciplinary interviews, and also documenting these interviews. Taking notes during or immediately following a discipline conference will create a record of exactly what happened, and will also help in supporting personnel decisions. The notes taken can come in handy if/when employees attempt to take legal action for wrongdoing. It is also recommended that documentation takes place over time. Progressive discipline procedures would include the following: oral warning, first written warning, second written warning and last chance agreement. It is very important to perform a non-confrontational interview in the presence of a witness, and most important,, have a form of documentation created either during, or immediately after the interview, in order to treat all employees equally. Below is a sample of a written notice to an employee that can be used as proper documentation upon the employee’s release. MEMORANDUM TO: Employee FROM: H.R. Director DATE: xxxxx RE: Final Warning Session and Notice of Last-Chance Agreement

On _________________________, a counseling session was conducted, and on ____________________________, a follow-up conference was held to address certain unsatisfactory aspects of my performance/behavior. Those problems are as follows: (Here insert the problems precipitating the situation.) I agreed that improvement in these performance/behavior problems would take place immediately. To this date, I have been unable or unwilling to improve those problems. On ___________________, I was warned that unless there was immediate improvement, further disciplinary action, up to and including termination, would result. In light of the above, I agree that if there is even one more instance of any one or more of the problems listed above, my relationship with this organization will be terminated immediately. I have read the above, understand it, and have received a copy.

_____________________ ____________ (Signature of employee) (Date) Should the employee refuse to sign, the manager should note on the document that the employee was presented with a copy of the memorandum but refused to sign. The employee can then be asked to sign this note.

Issues to be Considered Before Taking Disciplinary Action Before you conduct a termination or take disciplinary action against an employee, consider the following: • Thoroughly prepare • Work with the employee’s supervisor/manager to make sure they understand and are okay with the termination. • Don’t delay the inevitable; arrange to have the termination done once all documentation has been completed. • Arrange to have another witness present (manager/another HR rep) • Have adequate facts and documentation for the reason for termination. • Be sure to have clear, concise documentation. • Make sure you refer to the company policies and practices and clearly outline what policy the employee is violating. • Provide copies of any written or verbal warnings or any other violations. • Consider the employee to have an irrational response; it may be wise to have security present. • Have a list of any items the employee will need to turn in. • Prepare any documents that will include final pay information, benefits, COBRA, unemployment, etc.

If you are a manger or HR rep conducting a termination, and have ample notice, it is wise to get as much paperwork ready beforehand. Compose a list of any items the employee will need to turn in (cell phone, ID card, laptop, beeper, etc.). Also, have ready any forms that will need to be signed, a copy of the forms for the employee, and also make sure they are clear on what they need to return yet (uniforms, keys, etc.)

Having the proper documentation is considered factual evidence. In most cases the employee has previously acknowledged any warnings or disciplines against them. This proves the employee was aware of any rules or guidelines they were not following and they could be terminated for any future violations.

Reasons Employers May Need to Seek Legal Advice While every manager hopes that a termination will end peacefully, this is not always the case. Sometimes legal action needs to be taken to protect the company. If an ex-employee seeks to sue the company for a wrongful termination, the legalities of the termination and reason for will be closely investigated.

The following is a summary of why employees may bring a lawsuit against their employer:

Lack of clarity on what is expected from the employee

Many employees quit and then sue their employers, because of a lack of clarity of what is expected from the employee. Employees seek legal advice when the hours, the pay, the tasks, or other terms are unclear. They apparently feel exploited when the scope of their duties exceeds the expectations that were established during the orientation. Employers should be clear as to what is expected of employees from the very beginning when the employment relationship is established. For some reason or other employees often feel exploited when their expectations and actual duties are conflicting. Employee's quitting or contemplating quitting often seek legal advice when they feel they have been exploited, and even though there might not be a basis for a lawsuit on the grounds that the employee feels exploited, a skilled attorney will know what questions to ask and a lawsuit may result.

Terminating a long term employee

Long term employees often seek legal advice when they are terminated, regardless of what the reason is or even if there is no reason. Long term employee's often feel the employer owes them for their long term commitment to the employer, and often they feel they have a right to the job. Generally there is no actionable cause of action against the employer when the employee is terminated, but if the employer failed to comply with all rules, especially rest periods, meal breaks, and overtime pay, the employee would have a viable lawsuit. Termination of long term employees should be done with great caution, and the employer should make an effort to end the relationship on good terms.

Money hungry employees

Employers should be very careful when selecting new employees that give the impression they are money hungry. Employees asking for raises, advances, or filing bankruptcy, or otherwise indicating they are in need of money, often seek legal counsel shortly after they quit. These are often the same type of employees that have a drinking problem or drug addiction. If the employer failed to document everything pertaining to meal breaks, rest periods, and actual hours worked a viable lawsuit might result. Money hungry employees often look to the legal system as a means of obtaining money.

Hiring employees as independent contractors

Most independent contractor agreements are not valid, because they lack something or because the employer is acting as an employer and the contractor acts as an employee. Employees should not use independent contractor agreements to hire employees. Independent contractors should be independent contractors and employees should be employees. Using an independent contractor's agreement is a problem that comes back to hurt the employer. Depending on the circumstances, the employer is not safe for about four years after the fact. There are also many disadvantages to the employee hired as independent contractor and as they try to remedy the disadvantages they often seek legal counsel.

Over religious employees

Some over religious employees often seek to advance their religious beliefs at every opportunity. This leads to problems for employers, because religion necessarily involves potential liability for religious discrimination, it could be the religious advocate or it could be other employees. Employer's should address the issue of religion and make inquiry as to whether there is a need to accommodate religious beliefs or practices.

Mistreating employees

No one likes to be mistreated and mistreated employees often seek legal counsel. Such things as bounced payroll checks, late payroll checks, bank fees on for cashing payroll checks, unauthorized payroll deductions, and other such things irritate employees and often the employee is right and the $5 dollar fee to cash a payroll check at the employer's bank can turn into a $30,000 judgment against the employer.

Employers must be careful of wrongful terminations. Common cases of wrongful terminations include: • Breach of contract: the employer has a legal obligation to uphold all components of an employment contract, union-negotiated or otherwise. Most employment contracts have employment termination clauses which the employer must honor. • Breach of implied contract: the employer must take care that the company does not imply in writing or verbally that employment is protected or guaranteed or that any other non-contractual obligations exist. This is why most employers ask employees to sign off on an employee handbook statement that states that written company documents offer guidelines, not a contract. • Breach of covenant of good faith and fair dealings: the terminated employee can try to prove that their termination was unfair and that an employer did not fire him for good cause, in some states. This is extremely difficult to prove if an employer has kept even a modicum of documentation about an employee’s performance problems and managerial counseling. Terminated employees will generally find that employment at will is the more significant decision factor. • Unlawful discrimination: employment discrimination is illegal. Former employees must file suit with the Equal Employment Opportunity Commission (EEOC), and perhaps their state civil rights commission, before charging an employer in court. An employer protects their organization from such charges by practicing strict care to avoid employment discrimination, or the appearance of employment discrimination, for any reason.

For example, in a layoff situation, an employer must demonstrate non-discriminatory reasons for why each laid off employee was selected. Laying off all members of an eliminated department, or laying off the 10% of all employees with the least seniority, may keep employers safe from discrimination charges.

Even employers who have the proper documentation and have followed laws pertaining to firing and not discriminating may find that an employee who is fired will still seek legal action. Employees that are fired are angry and embarrassed and will seek out revenge. This is why it is very important for employers to document, document, document.

Union Issues

When disciplining or discharging a union employee, it is important to take certain actions to avoid a reversal later on in the process. Union’s usually hold employers to a clause in the contract which states something similar to “Employees shall be disciplined or discharged only for just cause.” Sometimes this is worded “proper cause” or “fair cause”. What is considered “just cause”? The Bureau of National Affairs lists them as seven tests:

1. Was the employee adequately warned of the consequences of his conduct?

2. Was the employer’s rule or order reasonable/related to efficient and safe operations?

3. Did management investigate before administering the discipline?

4. Was the investigation fair and objective?

5. Did the investigation produce substantial evidence or proof of guilt?

6. Were the rules, orders, and penalties applied evenhandedly and without discrimination?

7. Was the penalty reasonably related to the seriousness of the offense and the past record?

What should the employer do?

The first step towards using the disciplinary process effectively is to make sure that employees, and the Union, understand what is expected of the employees both in terms of misconduct and positive performance expectations. Employers should negotiate for the ability to make and enforce work rules and expectations. Nevertheless, even if the contract doesn’t specifically grant that right, an employer can state very clearly what it expects and what it does not expect. Employees are more likely to follow rules and achieve expectations if they understand what they are.

The second step is to make sure that the things expected and prohibited are reasonably related to the company’s business. Arbitrators will not sustain discipline related to irrational work rules and employers are not well served by spending their energy enforcing silly rules. While employers should be reluctant to negotiate specific work rules with the union if they can avoid doing so under the management rights clause, discussion of such rules with the union can raise rational operational issues that should be addressed and get buy in from the union and the employees as to the importance of these rules. Discipline does not need to focus solely on misconduct, but can be used to promote efficient and effective work as well. Employees who fail to meet appropriate service or productivity standards can be subject to discipline, for example.

Assuming that an employer believes that an employee has engaged in misconduct, the employer should engage in a thorough investigation to determine exactly what happened. It does the employer no good to terminate someone for a crime he or she did not commit. Because most people are poor liars, particularly when they have not had time to be coached, an employer should get the employee’s version of events in as much detail as possible very early in the investigation. The employer should follow up on that statement and see if there are facts that support or contradict it. Written witness statements are also extremely helpful if taken close in time to the event. A thorough, contemporaneous investigation will go a long way to a correct decision (one arbitrator even held that an employer who did an excellent investigation but got the wrong result nonetheless had “just cause” for termination! – but don’t count on that).

Finally, once management understands what the employee did, the employer must determine what, if any, discipline to impose. Termination should be reserved for employees who have demonstrated that they are not capable of positively contributing to the organization’s endeavor. This may be because of the severity of a single act – stealing, for example – or because progressive discipline has demonstrated that this employee will not or cannot learn from mistakes. Management should be prepared to defend terminations in these terms. Lesser discipline should be designed to correct the employee’s behavior and serve as an example to other employees. While many supervisors and managers do not believe it, experience shows that in many, perhaps most cases, progressive discipline actually works and that marginal employees will improve if they believe that their jobs depend on getting better. In conclusion, terminating or disciplining employees is never easy. Employers, managers and HR reps can be prepared by documenting notes to employee’s files and also understanding and abiding by employment laws. At minimum it is important to know the basics of employment laws to ensure all legalities are being followed. No one wants to end up in a courtroom for breaking a law by discriminating or wrongfully terminating an employee.

References The U.S. Equal Employment Opportunity Commission, Federal Equal Employment Opportunity (EEO) Laws, http://www.eeoc.gov/facts/qanda.html http://www.alaencyclopedia.org/samples/Free_Version_THE_IMPORTANCE_OF_DOCUMENTATION_DURING_THE_DISCIPLINE_PROCESS.htm humanresources.about.com/od/legalissues/qt/Wrongful Just Cause Discipline: Using it to help your business. (2006, March 11). Retrieved May 19, 2011, from HG.org: http://www.hg.org/articles/article_1439.html Stulberg, R. B. (n.d.). DISCIPLINE AND DISCHARGE OF UNION-REPRESENTED EMPLOYEES. Retrieved May 19, 2011, from Broach & Stulberg, LLP: http://www2.americanbar.org/calendar/ll0322-2011-midwinter-meeting/Documents/50_stulberg.pdf The Seven Tests. (n.d.). Retrieved May 19, 2011, from United Electrical, Radio, and Machine Workers of America: http://www.ueunion.org/stwd_jstcause.html