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Discipline & Termina/on for Supervisors
G&A August 2015
ROLE OF THE SUPERVISOR
What is Your Role Related to…
• Repor/ng problems? • Harassment complaints
• Confiden/ality? • Administra/ve tasks (paperwork)?
• Giving feedback to employees?
Some Tips • Socializing with Employees: When you are there, everything is assumed to be said or done with the tacit approval of management.
• Get to know and care about your employees, but balance friendship and authority so you can s/ll: Ø Review performance Ø Maintain team morale Ø Maintain confiden/ality
• Set regular /mes for reviewing performance. Ø Otherwise you only talk about problems.
• Do not ever discuss employment decisions or performance with other employees.
DISCIPLINE & TERMINATION Supervisor Training
EEOC Press Release 7/19/2012 Hawaii Healthcare Professionals, Inc and its owner have been ordered to pay $193,236 to a woman allegedly fired due to her age. • The company’s owner, Carolyn Frutoz-‐De Harne, ordered the 2008 termina/on
of Debra Moreno, a then-‐54-‐year-‐old office coordinator at its Maui facility, according to the EEOC. The termina/on proceeded despite reports by the facility’s manager, who actually hired and supervised Moreno, that Moreno was a thorough and efficient worker.
• Frutoz-‐De Harne allegedly ordered that Moreno be fired a^er telling the manager that Moreno “looks old,” “sounds old on the telephone,” and is “like a bag of bones.” Frutoz-‐De Harne also allegedly told the manager that Moreno was not the type of person she wanted represen/ng her company, the EEOC said.
• A^er the termina/on, the manager reported the ageist comments to Moreno, who in turn filed a discrimina/on charge with the EEOC.”
Lessons from Debra Moreno
1. Don’t make discriminatory comments 2. “Same-‐actor inference” defense: If hired
and terminated by the same person, discrimina/on is unlikely
3. Documenta/on did not support the termina/on
4. Supervisor said too much to the employee
Discipline & the Law
• EEO Laws -‐ Discrimina/on • Consistency and Fairness • Retalia/on • NLRA – complaints and unions • Worker’s Compensa/on • Unemployment • Wrongful Discharge
Protected Groups
• Race • Color • National origin • Religion • Sex/Pregnancy/
Sexual orientation • Age • Disability • Genetic information • Others by State/ City
Consistency & Fairness
Always… • Address bad behavior promptly • Treat similar viola/ons similarly • Discipline appropriate to the viola/on • Follow policy (check handbook)
But… • Only discipline when necessary
EEOC Press Release 4/5/2011 Federal Agency Charged Black Tanzanian Network Analyst Was Fired While White Counterpart Was Merely Disciplined
• Broadband Company Pays $60,000 To Sejle EEOC Race And Na/onal Origin Discrimina/on Suit
• In its lawsuit, (Case No.: 1:10-‐CV-‐03106), the EEOC charged that a black Tanzanian network analyst was fired for leaving work 30 minutes early.
• However, a similarly situated white network analyst received only a wrijen discipline a^er leaving work two hours early, twice in one week.
• “The EEOC filed this lawsuit because the difference in treatment between these employees was clear, and a woman lost her livelihood due to this discrimina/on,” said Robert Dawkins, regional ajorney for the EEOC’s Atlanta District Office. “It is plainly illegal to treat employees differently because of their race or na/onal origin. This resolu/on, we trust, will prevent such disparate treatment in the future.”
Unemployment Claims
• Culpability – “The conduct causing the discharge must be so serious that con/nuing the employment rela/onship would jeopardize the employer's righoul interest.”
• Knowledge -‐ “The claimant must have had knowledge of the conduct the employer expected.”
• Control – “The conduct causing the discharge must have been within the claimant's control. ”
Cost you money in UI premiums. To win an unemployment claim, generally you must demonstrate that the employee had:
Before Using Discipline
• Observe the behavior firsthand or inves/gate
• Consider: Ø Severity of offense Ø Employee’s prior history Ø Mi/ga/ng circumstances Ø Was the employee aware? Ø Precedent Ø Policy Ø Consul/ng HR
Inves/ga/ons
• Get the facts • Explain the facts • Document the facts • Interview witnesses • For serious cases – involve HR
EEOC Press Release 2/7/2013 Company Fired Employee for Not Wearing ProstheOc Arm • MIAMI -‐ A Florida full-‐service asset protec/on security firm violated
federal law by firing an employee because of his disability, a missing arm, and then punishing him for complaining about the discrimina/on, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed today.
• The EEOC had charged that Florida Commercial Security Services, Corp., doing business as Florida Construc/on Security Services (FCSS), terminated a guard for failing to wear his prosthe/c arm, even though it was unnecessary, and then refused to assign him to another posi/on because he filed a discriminaSon charge with the EEOC.
• "The ADA requires that people with disabili/es be judged on their ability to perform the essenSal funcSons of the job -‐-‐ not on stereotypes or appearances," said Robert E. Weisberg, regional ajorney for the EEOC's Miami District Office. "Customer complaints about an employee's appearance created by his disability are not a legi/mate reason to terminate him.“
EEOC Sues Florida Construc/on Security Services for Disability Discrimina/on and Retalia/on, EEOC Newsroom, 2/7/2013
Discipline Op/ons
• Coaching and feedback • Verbal warning • Wrijen warning “write-‐up” • Performance Improvement Plan (PIP) • Suspension without pay • Termina/on
Progressive Discipline
• Sets expectations • Accountability – employee must change
or leave…may choose to resign • Correct the behavior – easier to retain
than retrain • Deterrent – other employees notice
The Discipline Mee/ng
• Meet in private • Witness present • Review the poor performance • Explain expected performance (w/deadline) • Review the form • Ask them to sign • Allow employee comments • Give them a copy of the form • CONFIDENTIALITY
Termina/on – Extra steps
• Consult G&A • Collect documenta/on – always • Final check
• Utah -‐ Must pay within 24 hours of termina/on • (Resigna/ons: on next regular payday)
The Termina/on Mee/ng
• Meet in private • Witness present • Get to the point • Review term form • Ask them to sign • Give them a copy of the form and final check • Submit term form to HR
Documenta/on Helps Employer Win Discrimina/on Lawsuit
• “The Seventh Circuit recently upheld the summary judgment dismissal of a former hospital worker's claims for na/onal origin and age discrimina/on a^er the worker was fired for repeatedly sending "nega/ve, unprofessional, and disrespecoul" emails to her boss and other co-‐workers.
• Notably, the plain/ff presented evidence that her 2008 and 2009 performance evaluaSons were "saSsfactory" and that several of her co-‐workers made a variety of remarks about her Puerto Rican naSonal origin.
• However, the hospital employer had documented its various disciplinary acSons with plain/ff, including two counseling sessions Human Resources had with her in April 2010 regarding her unprofessional communica/ons with peers and supervisors and a wrijen warning in July 2010 for similar conduct. In April 2011, a^er learning about three more unprofessional emails sent by the plain/ff to her boss, the hospital fired her.
• The Seventh Circuit held that the plain/ff's evidence of meeSng expectaSons on her performance evaluaSons was essenSally trumped by the more recent and thorough documentaSon of the plainSff's discipline issues, thus elimina/ng a triable issue of fact.”
Employer's Contemporaneous Documenta/on of Verbal Counseling Helps It Win Discrimina/on Lawsuit, Laner Muchin, 2/18/2014
Lessons from Margarita Zayas
• Supervisor gave nega/ve performance feedback Ø and documented it!
• Good, recent documenta/on even trumped performance review
• The case didn’t have to go to jury Ø employers don’t get much sympathy from juries
• Same-‐actor inference helped this /me
Documenta/on
• Complete promptly a^er the incident • Facts only: use dates, /mes and details • No judgments, emo/ons or conclusions
• Types of Documenta/on Ø Supervisor Ø Company Ø G&A
Documenta/on: What to include
• Employer’s expecta/on • How the employee has failed to meet that expecta/on
• Prior counseling or discipline • The employer’s expecta/ons going forward • The consequences of the employee’s failure to make the requisite improvement
Blunders in Documen/ng Discipline, SHRM 9/23/2014
Documenta/on: Common Mistakes
• Using labels without providing behavioral examples • Using words that sound like “proxies” for bias retalia/on • Focusing on the employee’s intent (as opposed to results) • Focusing on the perceived cause of a performance problem as opposed to the problem itself
• Using absolutes that are not credible • Hedging so much that the employer seems uncertain of the basis for its own decision
• Including too much detail • Using technical rather than plain language • Failing to make clear the consequences of lack of improvement
• Using labels that may create liability
Blunders in Documen/ng Discipline, SHRM 9/23/2014
Documenta/on: Examples
Problema/c Documenta/on: • Jim has a poor awtude when asked to complete work assignments.
Bejer Documenta/on: • On May 4, 2012, I asked Jim to have the quarterly report turned in by May 7th. Jim rolled his eyes and said “Yeah, right” then walked out of my office.
Documenta/on: Examples
Problema/c Documenta/on: • Maj is always late, even a^er he has been given a warning.
Bejer Documenta/on: • Maj is scheduled to be at work at 8:00 a.m. On March 15, 2012, he arrived at 8:15 a.m.; the following day he arrived at 8:20 a.m. On March 16, I told Maj that he needs to be here by 8:00 a.m. or we would proceed with disciplinary ac/on. Maj said that he would be here at 8:00 a.m. On March 26, Maj arrived at 8:30 a.m.
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