Dealing with ProblemEmployees Effectively

Legal Tips and Challenges

Goals for Presentation

2

• Review typical challenges in coaching,counseling and discipline conversations

• Provide tips for handling or avoidingtypical challenges

• Create awareness but not fear of legalissues

Beth’s Theory

Fairness + Respect = Few Legal Issues

3

Intro to Legal Rights

• Employees in West Virginia are generally“at will, meaning they may be dischargedor resign without cause or notice

• “At will” exceptions:

– Employment Agreements/CollectiveBargaining Agreements

– “Public policy” exception

– Discrimination and other protective laws

4

Examples of Protective Laws

West Virginia Human Rights Act - Civil Rights Act of 1964 -Americans with Disabilities Act -Age Discrimination in EmploymentAct – Family and Medical Leave Act – Equal Pay Act – UniformedServices Employment and Reemployment Rights Act –Occupational Safety and Health Act – Genetic Information andNondiscrimination Act – Fair Labor Standards Act – EmployeeRetirement Income Security Act – Executive Order 11246 –Bankruptcy Code – Immigration Reform and Control Act – WestVirginia Whistleblower Law – West Virginia Patient Safety Act –West Virginia Workers’ Compensation Act – Federal and State lawsprotecting jury duty – Federal and State laws prohibitingdiscrimination based on wage garnishment – West Virginia Use OfTobacco Products – West Virginia statutes protecting political views

5

Legal FAQs(Frequently Asked Questions)

6

Legal FAQs

• Should I document a coaching ordisciplinary conversation?

– Scripts or talking points are helpful if you arenervous or uncomfortable

– A memo confirming the meeting can clarifythe message

– Undocumented conversations are easilydenied or misunderstood

7

Legal FAQs

• What if the employee asks for arepresentative or witness?

– Absent a contract that states otherwise,employees do not have any legal right to awitness or representative in a coaching,counseling or disciplinary conversation

– Consistent practice of not permittingrepresentatives or witnesses is recommended

– Special circumstances should be considered

8

Legal FAQs

• Should I have a witness with me fordifficult conversations?

– A fellow member of management may help indelivering the message

– Having a witness for some conversations andnot others might give appearance ofdiscrimination

– Use good judgment

– Be conscious of intimidation

9

Legal FAQs

• What if the employee wants to tape theconversation?

– Under WV law, one-party surreptitiousrecording is permitted

– You are not required to give consent to taperecording (I recommend you do not)

– Remember that audio recording can bemanipulated

10

Legal FAQs

• What if person being coached ordisciplined raises new information orallegations?

– If new information, listen and acknowledgeand look into it after the meeting

– All allegations of unlawful harassment ordiscrimination must be reported/investigated

11

Legal Tips for Staying Outof Court

12

Legal Tips

• Do NOT retaliate for protected activities

• Some examples of protected activities

– Raising safety concerns

– Questioning legality of payroll practices

– Complaining about unlawful discrimination orunlawful harassment

– Whistleblowing as to illegal conduct

13

Legal Tips

• Coaching conversations should be basedon performance and NOT protectedactivity or status like --

– FMLA leave or other protected medical leave(like workers’ compensation)

– Protected categories (age, race, religion,pregnancy, union activities, etc.)

– Protected activities (explained on previousslide)

14

Legal Tips

• Treating the same performancechallenges differently is an invitation for adiscrimination claim

• Delaying coaching, counseling ordisciplinary action for problem conduct orperformance sets the stage for anemployment claim

15

Legal Tips

• Use email wisely and sparingly (when indoubt, delete before sending)

• Remember that your employee is NOTyour patient in a coaching conversation –be compassionate but not clinical

16

Typical Challenges

17

Typical Challenges

Challenge and Impact

• Unacceptable conducttolerated for extensiveperiod of time– Intervening events pose

risk of discrimination orretaliation scenarios

– Difficult to explain past lackof action

Leadership Opportunity

• Investigate and changecourse to remedysituation

• Acknowledge pastinaction and emphasizenew commitment

18

Typical Challenges

Challenge and Impact

• Written performanceevaluations areinconsistent withcoaching or correctiveaction– Mixed message

– Importance of coachingundermined

– Almost impossible toexplain in litigation

Leadership Opportunity

• Be consistent andaccurate in allcommunications

• Not communicating iscommunicating

• Make sure right folks areevaluating performance

19

Typical Challenges

Challenge and Impact

• Individuals who receivereward and recognitionare not solid or highperformers– Mixed message

– Positive messagecontradicts and overridesconstructive feedback

Leadership Opportunity

• Be honest

• Recognize solid and highperformers appropriately

• Performanceencompassescompetence, behaviorand attitude

20

Typical Challenges

Challenge and Impact

• Over-reliance on emailcommunications fordifficult conversations– Easily misinterpreted

– Email “strings” can createunintended message

– Can provoke “ranting” orendless debate

Leadership Opportunity

• Communicate directlyand in person

• Confirmation by email isOK, but first deliverdifficult messages inperson

21

Typical Challenges

Challenge and Impact

• Performance standardsand expectations are notconsistently upheld indepartment or acrossorganization– Promotes perception of

“favorites” and “doublestandards”

– Harms morale

– No benefit seen toimproving performance

Leadership Opportunity

• Be consistent

• Be aware of perceptionsof inconsistencies andunfairness and addressthem

• Uphold accountability

22

Guidelines for DisciplinaryDocumentation

23

Documentation Guidelines

• Developing a “template” for disciplinarydocumentation is nearly impossible

– Every situation should be analyzedindividually

– Use extreme caution with “cutting andpasting” from prior documents

• Applicable policies must be identified byname in the document

24

Documentation Guidelines

• Description of incident(s) should beconcise, factual, objective and free fromassumptions or exaggeration

• Level of detail should be minimumnecessary to explain the situation

• If investigation has been conducted, retainsupporting documents in investigative file

25

Documentation Guidelines

• NO confidential information (like medicalinformation) in disciplinary documentation

• Avoid abbreviations and slang

• Use correct grammar and propersentences

• Does your document make sense to aperson not familiar with your department?

26

Questions and Discussion

27