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Association of Legal Administrators
Capital ChapterFall Forum
October 25, 2012
TIPS IN A TIGHT ECONOMY
Facing the need for staff cuts? What is motivating the reduction?
Budget driven? Reduced workload/excess capacity? Client departures?
Make sure objective is clear. Eliminate dollars, marginal
performers, or both?
Performance-related Reductions?
Examine the paper trail carefully Law Firms notoriously bad at
written performance documentation
Assess the likelihood that a claim may be filed; often correlates to employee surprise; consider modest severance with a release
Documenting Performance Issues
Two separate issues (both for the employer’s protection) Constructive criticism and coaching Risk management
Risk Management Notes; memos to file; e-mails to/from employees with personal
knowledge; memos/e-mails to individual; performance evaluations; warnings and disciplinary memoranda
Consistent application of firm policies or practice Feedback to employee
Normally based on the severity of the problem Customarily progressive (verbal, notes, warnings,
performance evaluations; performance improvement plans) Evenhanded; as objective as possible Employee should never be surprised
Budget Driven Reductions?
Establish a target ($$) Is the target permanent? Think outside the box Across-the-board actions save jobs, are
easy to communicate and avoid claims Compensation freezes (or cuts) Elimination of bonuses Furloughs
If A Reduction Is Required?
Eliminate position or person? If position, what about the incumbent?
Qualified for other positions? How does performance rank? Other positions at same salary? If not, offer employee reduction in pay?
Be careful of decisions based on salary
Some Mortal Sins in Terminating Employees There is no contemporaneous
documentation The employee is surprised The explanation you give the employee
is not the real reason for the decision Employees guilty of comparable
offenses were not terminated The employee received good
evaluations and salary increases
Was Employee On Notice? Should be in writing Options Include:
Employee Performance Evaluations Written Warnings/Disciplinary Memoranda E-mail communications
Verbal Communication? Follow up by promptly reducing to writing
Serious Issues require immediate action
So what does it say?
Can a juror understand three things? What was wrong?
“Unacceptable” or “unsatisfactory” “Deficient,” “below standard,” “marginal”
What employee needed to do? Commands: “stop,” “discuss,” “meet,”
“confer,” “don’t” How Important?
“Critical,” “essential,” “basic,” “fundamental,” “pivotal,” “required,” “non-negotiable”
Subjective vs. Objective
Can performance be measured? Gravitate toward objective standards,
if you can Get employee to agree on metrics Put standards in writing Eliminate disputes about input
Try to avoid vague standards “Cooperation,” “attitude,” “enthusiasm,”
“chemistry”
Danger Signals
Long Service Employee Intersection of age and compensation
often makes senior employees easy targets for cost-cutting
Stereotyping: “retire soon,” “has a pension,” “not hungry” or “aggressive”
Long service suggests (a) good performance, and (b) strong loyalty to the company
Danger Signals (more)
Unbroken string of good (or satisfactory) evaluations
Consistent (and recent) promotions or salary increases
No progressive discipline Different standards for different
employees; time and attendance?
Workplace Harassment: What the Partners Need To
Know
Who is the “employer?” Actions by partners subject the
firm to liability Legal obligation is “prompt and
effective remedial action” Partners must police themselves
A quiz. A law firm hypothetical “What if?”
At the firm’s fall retreat, one of the firm’s partners tells the vendor drawing caricatures that he wants the drawing of the female employee to depict her exposed breasts.
And What if…
The comment is made in front of several firm employees, both men and women, including another partner, and you.
And What if . . .
Those present shake their heads in disbelief and giggle uncomfortably, but no words are spoken.
And What if . . .
The following week, you report the incident to the Managing Partner, who then speaks with the misguided partner.
Disaster averted?
Management Take-Aways Management can never “do nothing”
Immediately condemn offensive conduct when it occurs in the presence of others
Never discourage an employee from complaining
Engage Human Resources promptly
Document and communicate
Scrupulously avoid any form of retaliation
18
Suggestions for Law Firms Don’t avoid tough issues Aren’t all the partners entitled to know? Consider a committee Remember the concept of progressive
discipline Avoid the temptation to treat partners
differently than other employees Everyone must do something
Accrued Sick and Safe Leave Act of 2008
Minimum paid leave for illness, domestic violence or sexual abuse
Amount depends on employer size 100 or more: 1hr/37, max. of 7 days 25-99: 1hr/43, max of 5 days Under 25: 1hr/87, max of 3 days
3 or more days, “reasonable certification”
D.C. Sick and Safe Leave Leave carries over But, employee cannot use more than max
days in any one year (employer may allow) Not payable upon termination Eligible employees? One year and 1,000
hours PTO or “universal leave?” No change
necessary so long as at least “equivalent” FMLA? If same reasons, concurrently
Association of Legal Administrators
Capital ChapterFall Forum
October 25, 2012
Train Wreck Number One?
You need to hire a paralegal for a new full-time position.
Job will be located at the headquarters of the firm’s best client; specialized electronic searches and data production
You anticipate training of 90-days; then employee goes on site; job should become permanent
Successful applicant is 3 months pregnant but tells no one. She is hired after interviews
Train Wreck No. 1; Can it get any worse?
Employee making inadequate progress during training; you suggest she move to another position; employee declines
To inform the employee improvement is required and she says she is pregnant
“I would not have hired you for this position had I known you were pregnant”
Employee terminated, and files suit
Solutions: Hindsight is helpful The application and/or interviews
Full time position? Convicted or plead guilty? Other than
a misdemeanor or traffic offense? What could have been asked?
Strategic positioning High risk termination? What could reduce exposure? Let her fire herself.
Train Wreck Number Two?
Company operates a call center with almost 100 individuals
Job involves multiple operating systems that must all be booted up and running simultaneously
Training takes 6 weeks During training, employees
advised to arrive early, start computers, get coffee and be ready for incoming calls at 8 a.m.
Is there a problem?
QUESTION #1OVERTIME/LEAVE
We have an honor system to turn in Leave (PTO) on the 15th and 30th of each month. Employees currently make up leave in that two week period and then turn in their Leave. I know we have employees that work overtime but are not paid for it. I assume this is illegal. I would like some hard facts on DC Law (or Federal Laws) that sets out the guidelines for Overtime and “Making Up” time. I am going to tackle our Employee Manual and I’d like to be prepared when talking with some of our attorneys. Does this vary by size (under 50 employees vs. over)?
ANSWER: Overtime/Leave Non-exempt employees must be paid
for time worked in excess of 40 hours Acceptable to have a policy by which
lost time is “made up.” Handbook should address
circumstances Same week. Only with supervisory approval Be careful of time and attendance issues
QUESTION #2RIGHTS OF SHAREHOLDERS
What rights does a shareholder (partner) have with regards to personnel? i.e., can they look in anyone else’s personnel file at will? If not on any management committee, do they have a right to know what everyone else in the firm is making? Do they have a right to know all the financial information?
ANSWER: Rights of Shareholders
Who is the employer? All the rights of the “employer”
unless the shareholders’ agreement is to the contrary
Be careful of medical information Salaries? Likely yes.
QUESTION #3DOCUMENTING PERFORMANCE
When and What is the best way to document performance issues? For example, you start hearing “little complaints” but then they escalate. When do you start documenting so that you have the paper trail needed when the bigger problems start? What do you recommend/suggest for noting “little complaints” and then bigger complaints? Forms vs. memos vs. email notes, etc. . . .?
ANSWER: Documenting Performance Issues
Two separate issues (both for the employer’s protection) Constructive criticism and coaching Risk management
Risk Management Notes; memos to file; e-mails to/from employees with
personal knowledge; memos/e-mails to individual; performance evaluations; warnings and disciplinary memoranda
Consistent application of firm policies or practice Feedback to employee
Normally based on the severity of the problem Customarily progressive (verbal, notes, warnings,
performance evaluations) Evenhanded Employee should never be surprised
QUESTION #4WORKPLACE INVESTIGATIONS
I would also like a review on the steps to take when conducting an investigation.
ANSWER: Workplace Investigations
Prompt; impartial; thorough Critical question: Who is the right person?
Key witness in defending the firm Compromise working relationship with
employees? Who will make the decision? Not obvious in a
small firm. Confidentiality? Communication of Results? By and To?
QUESTION #5RECORDKEEPING
Does DC require you to keep a log and/or the resumes received for both solicited and unsolicited resumes? If so, how long?
ANSWER: Recordkeeping
Employment Records Hiring, promotion, demotion, transfer,
terminations, compensation Federal Law
At least one year from the date of the record, or the employment action, whichever is later
29 C.F.R. 1602.14
Question # 6Facebook or Twitter?
We use a telephone call service that allows us to send important information to our employees in a blast message to home and cell phone numbers. Would it be legal to require all employees to have a Facebook, Twitter or some other sort of social networking account so that in an emergency, the Firm has an additional way of reaching employees with important information?
ANSWER: Too much? Generally, employer can require reliable
means of communication in case of emergency
But, dangerous to require methods that will obligate employees to disclose information about themselves on a social networking platform
A firm “blog” for communication purposes?
Question #7 Time and Attendance
How do you deal with an employee who is a good secretary, has her attorneys’ support, but does not arrive to work on time? She has been called into my office several times, we have changed her hours, but traffic is always her excuse
Answer: Uniform application of the Firm’s policy
Firm policy on time and attendance Uniform application; avoid disparate
treatment or claims of favoritism Office morale issue Progressive discipline and
paperwork; also a compensation issue
But, you need support
Question # 8Suspicious Absences
Can you require an employee who has a consistent proven pattern of absence due to illness on Mondays and/or Fridays, before and after holidays and vacation days to provide a doctor's certificate as proof of illness?
ANSWER: Written Policy is Key
Want to avoid ADA and privacy claims Stick with written firm policies
Handbook is best source Provision regarding suspicious pattern of
absences, at the firm’s discretion Otherwise, written firm policy
regarding instances of potential abuse
Christopher G. MackaronisBrickfield, Burchette, Ritts & Stone, PC
1025 Thomas Jefferson Street, NW, 8-WestWashington, DC 20007
Mr. Mackaronis represents clients in complex litigation and on virtually all workplace and employment issues. He regularly provides proactive risk-management services to clients by working to diffuse employment disputes before claims are filed, and by working to favorably position clients to successfully defend claims that are filed.
