WARD & GLASS, LLPDEALING WITH THE TROUBLED/TROUBLING EMPLOYEE

WOODROW K GLASS

OVERVIEW

• EVALUATING EMPLOYEE PERFORMANCE• EMPLOYEE DISCIPLINE PLAN AND PROPER DOCUMENTATION• LEGAL V. ILLEGAL REASONS FOR TERMINATION• RETALIATION CLAIMS AND EMPLOYEE DISCIPLINE• NEGOTIATING SEVERANCE PACKAGES AND SEPARATION PAY• COMPLIANCE EXIT INTERVIEWS: DOCUMENTS AND DISCLAIMERS

SETTING THE TONE

EVALUATING EMPLOYEE PERFORMANCE

• ANNUAL PERFORMANCE EVALUATION• WHY DO WE NEED THEM• COMPANY POLICY • A MEANINGFUL PERFORMANCE EVALUATION

THE TYPICAL PERFORMANCE EVALUATIONS

• WE USE THEM WHEN THERE IS A PROBLEM• WE USE THEM WHEN WE ANTICIPATE A PROBLEM• WE USE THEM WHILE TRYING TO JUSTIFY OUR POSITION TO A PROBLEM• CHECK THE BOX

MEANINGFUL EVALUATIONS

• A TRUE EXCHANGE OF IDEAS• SOLICIT FEEDBACK• OBSERVATIONS OUTSIDE THE WRITTEN JOB DESCRIPTION• RECOGNIZE POSITIVE CONTRIBUTIONS • LISTEN – YOU CAN LEARN A LOT JUST FROM LISTENING• THE BEST EMPLOYEE FINDS SOLUTIONS TO THE OBVIOUS• PROVIDE CLEAR FEEDBACK – SET EXPECTATIONS

EMPLOYEE DISCIPLINE PLAN AND PROPER DOCUMENTATION

• PROGRESSIVE DISCIPLINE – HANDBOOK • CONFIRM IN WRITING THE KEY PERFORMANCE RELATED ISSUES• DOCUMENTATION BECOME ESSENTIAL FOR EFFECTIVE FOLLOW-UP• CONSISTENCY IN THE DISCIPLINE

LEGAL VS. ILLEGAL REASONS FOR TERMINATION

• WRONGFUL TERMINATIONS• “AT-WILL”• FMLA – ADA-WORKERS’ COMP• TITLE VII CLAIMS

WHAT IS A “WRONGFUL TERMINATION”?

• ALMOST ALL TERMINATIONS ARE WRONGFUL • IS THE WRONGFUL TERMINATION ACTUALLY UNLAWFUL

THE “AT-WILL” DOCTRINE

• GENERALLY, ONE’S EMPLOYMENT IS TERMINAL AT WILL, WHICH MEANS THAT EITHER THE EMPLOYER OR THE EMPLOYEE HAS THE RIGHT TO TERMINATE THE EMPLOYMENT AT ANY TIME FOR ANY REASON OR NO REASON AT ALL WITHOUT LIABILITY TO THE OTHER FOR DOING SO.

EXCEPTION TO THE “AT-WILL” DOCTRINE

• PUBLIC POLICY EXCEPTIONS• REFUSAL TO VIOLATE A PUBLIC POLICY

• WAS THE EMPLOYEE DISCHARGED FOR REFUSING TO ACT IN VIOLATION OF AN ESTABLISHED AND WELL-DEFINED PUBLIC POLICY

• AN ACT FORBIDDEN BY LAW OR THE CONSTITUTION OR A STATUTE• ACT CONSISTENT WITH PUBLIC POLICY

• WAS THE EMPLOYEE DISCHARGED FOR PERFORMING AN ACT WITH A CLEAR AND COMPELLING PUBLIC POLICY

• EMPLOYMENT DISCRIMINATION

SETTING CLEAR EXPECTATIONS OF THE EMPLOYMENT RELATIONSHIP

TITLE VII CLAIMS

• CIVIL RIGHTS ACT OF 1964• FEDERAL LAW THAT PROHIBITS MOST WORKPLACE HARASSMENT AND

DISCRIMINATION• COVERS ALL PRIVATE EMPLOYERS, STATE AND LOCAL GOVERNMENTS

AND EDUCATIONAL INSTITUTIONS• MUST HAVE 15 OR MORE EMPLOYEES

TITLE VII PROVIDES PROTECTION FOR ….

• AN EMPLOYER IS PROHIBITED FROM DISCRIMINATING AGAINST A WORKER BECAUSE OF:• RACE• NATIONAL ORIGIN• RELIGION• SEX

TITLE VII ALSO PROVIDED PROTECTION TO…

• AN EMPLOYER IS PROHIBITED FROM DISCRIMINATING AGAINST A WORKER BECAUSE OF:• PREGNANCY• SEXUAL HARASSMENT

• QUID PRO QUO• HOSTILE WORK ENVIRONMENT

TITLE VII – THE PRIMA FACIE CASE

• PRIMA FACIE - ON ITS FACE• THE ESSENTIAL ELEMENTS OF THE PRIMA FACIE CASE

• MEMBER OF A PROTECTED CLASS• QUALIFIED FOR THE POSITION• ADVERSE EMPLOYMENT ACTION

TITLE VII – BURDEN SHIFTING

• AFTER ESTABLISHING A PRIMA FACIE CASE THE BURDEN SHIFTS• EMPLOYER MUST SHOW THE ACTION TAKEN AGAINST THE EMPLOYEE

WAS FOR A LEGITIMATE NON-DISCRIMINATORY REASON – RELATIVELY EASY

• EMPLOYEE MUST SHOW THE PROFFERED REASON IS A PRETEXT

RETALIATION CLAIMS AND EMPLOYEE DISCIPLINE

• WHAT IS RETALIATION?• AFTER ENGAGING IN A PROTECTED ACTION, AN EMPLOYEE ENGAGED IN AN

ADVERSE ACTION AGAINST THE EMPLOYEE• PROTECTED ACTIONS INCLUDE:

• SUBMITTING A CHARGE OF DISCRIMINATION TO THE EEOC• COMPLAINING ABOUT ILLEGAL ACTIONS IN THE WORKPLACE• COMPLAINING ABOUT HARASSMENT IN THE WORKPLACE

RETALIATION CLAIMS AND EMPLOYEE DISCIPLINE

• SOMETIMES THE RETALIATION CLAIM IS EASIER TO PROVE THAN THE UNDERLYING DISCRIMINATION CLAIM

• TEMPORAL PROXIMITY REQUIREMENT

NEGOTIATING SEVERANCE PACKAGES

• REDUCTION IN FORCE• COMPANY POLICY• MOST SEVERANCE AGREEMENTS RECOGNIZE ONE’S CONTRIBUTION TO

THE COMPANY• RELEASE OF CLAIMS • FORMALIZE THE AGREEMENT IN WRITING

COMPLIANCE EXIT INTERVIEWS: DOCUMENTS AND DISCLAIMERS

• EXIT INTERVIEWS IN GENERAL• MAY OR MAY NOT PROVIDE VALUABLE INFORMATION• IMPORTANT ROLE FOR RISK MANAGEMENT – IS THERE HIGH TURNOVER IN KEY

POSITIONS• MANDATED OR REQUIRED COMPLIANCE• COMPANY POLICY – A DEBRIEFING • ADEQUATE TRAINING • IS THE EMPLOYER ADEQUATELY TRAINING ON COMPLIANCE ISSUES

CLOSING ARGUMENT