Upload
others
View
0
Download
0
Embed Size (px)
Citation preview
1
CUNA Mutual Group Proprietary
Reproduction, Adaptation or Distribution Prohibited
© 2014 CUNA Mutual Group, All Rights Reserved.
Hiring, Firing and Everything in Between
Iowa Credit Union League Convention
September 17, 2015
2
JACK D. WILLIAMS, Esq. Senior Consultant, Risk Management
CUNA Mutual Group
(608) 665-8528
This presentation was created by the CUNA Mutual Group based on our experience in the credit union and insurance market. It is intended to be used only as a guide, not as legal advice. You should contact your credit union's legal counsel for legal advice. Any examples provided have been simplified to give you an overview of the importance of selecting appropriate coverage limits, insuring-to-value and implementing loss prevention techniques. No coverage is provided by this presentation/ publication, nor does it replace any provisions of any insurance policy or bond. Coverage may vary or may not be available in some states. Please read the actual policy for specific coverage, terms, conditions, and exclusions. For general information, please contact your company Sales Executive. Insurance products offered to credit unions, including the Bond, are underwritten by CUMIS Insurance Society, Inc., a member of CUNA Mutual Group.
2
3
Employment Lifecycle
Pre-hiring Process
Hiring Decision
Active
Employment
Decision to Terminate
Termination Process
Voluntary
Separation
4
Employment Claims
Only one way to win:
Avoid a claim
1. Easy to file (and hard to get dismissed)
2. Employee’s claims presumed to be valid
3. Plaintiff can recover attorneys’ fees (and you have to defend your credit union)
3
5
The Hiring Process
6
Job descriptions
Purpose
• Provide clear job expectations
• Give managers guidelines to hire, promote and supervise employees
• Support hiring, disciplinary, promotion, compensation and termination decisions
• Assist in legal compliance (FLSA, ADA, FMLA) and defense of claims (discrimination, wrongful termination, unemployment)
Best practices
• Consider job description process
• Update current job descriptions
• Consult an employment attorney for assistance or review of your job descriptions
What should be included?
4
7
Background Checks
8
Fair Credit Reporting Act
Use caution if you use a credit report in
your hiring practices.
FCRA Requirements:
1. Disclosure must stand alone
2. Summary of Rights must be
provided at specific time in process
3. Comply with adverse action
procedures
5
9
Fair Credit Reporting Act
Best practices:
1. Review Disclosure form and
Summary of Rights notice
2. Confirm your adverse action
procedures
3. Establish written policies and
procedures
4. Confirm forms are signed prior to
ordering background checks
10
Employment Issues
6
11
Employment Handbooks
• Disclaimer: handbook is a guide, not a contract
• Mission
• Employee definitions
• At-Will Statement
• Anti-discrimination and harassment (all protected classes; dress codes)
• Defined work week (meal, rest breaks included)
• Discipline
• Internet and Electronic Device Communications and Usage
• Leave and other benefits
• Overtime
• Social Media
• Acknowledgment of Receipt
Minimum policies to have
• Bullying
– Prefer boundaries, respect, civility
– California has “abusive conduct”
• Bring Your Own Device (BYOD)
• Social Media
• Lactation
Policies driving questions
12
Social Media
Risk mitigation tips
Establish written policies and procedures
Protect your credit union
Address professional and personal use
Train your employees
Ensure compliance with NLRB
Consult your employment attorney for review
Important note!
• Legal to search public social media pages of applicants
• Do not search or try to search private pages
• Do not ask for passwords
• Discipline carefully
7
13
Performance Reviews
Purpose
• Performance Review
• Set realistic goals
• Performance Improvement Plan
Important! Properly document the review and any discussions - these reviews are valuable evidence in any termination or disciplinary action
Risk mitigation tips
• Train managers regarding proper review
• Evaluate:
• Specifically
• Honestly
• For the entire year
• Follow up with goals and plan
• Document consistently
14
Litigation trends
• Wage and Hour
• Family Medical Leave Act (FMLA)
• Whistleblowers
• Discrimination / Harassment
– Pregnancy
– Sexual Orientation / Gender Identity
The impact:
Significant time and expense
to defend difficult claims
8
15
• The greatest risk for all employers
• Regulators, trial bar, and media focus on “wage theft”
• What credit unions need to know:
– Misclassification of non-exempt as exempt
– Misclassification of employees as contractors
To do
Review record keeping system, training program, job descriptions and responsibilities
Audit your practices to ensure compliance “This is how we’ve always done it” is no good
Consult your attorney
Wage and Hour
16
Family Medical Leave Act (FMLA)
Allows eligible employees of covered employees to take unpaid, job protected leave for specified family and medical reasons
Litigation trends
» Interference
» Retaliation
Risk mitigation tips
Establish written policies and procedures
Train employees and managers
Think and act proactively
Conduct thorough investigation
Consult employment attorney
Where FMLA leave ends… ADA begins?
9
17
Whistleblower protections
Provides information he / she reasonably believes evidences a violation of law, rule or regulation
Protects against workplace retaliation:
• Firing
• Demoting
• Disciplining
• Denying overtime or promotion
• Intimidation / harassment
Risk mitigation tips
• Establish written whistleblower policies and protections
• Strong internal corporate reporting system
• Train and educate all employees
• “Secrecy statements”
• Ensure compliance with laws/regulations
• Respond to complaints
Federal and state laws protect whistleblowers from retaliation.
Retaliation remains the number one EEOC filed charge.
Retaliation claims survive, even if underlying complaint has no basis.
18
Discrimination & Harassment
Federal, state, or municipal laws prohibit discrimination & harassment
• Americans with Disabilities Act
• Title VII of the Civil Rights Act
• Age Discrimination in Employment Act
• State: Wisconsin Fair Employment Act
• City: Equal Opportunity Ordinance
Protected classes Sex; Race; National Origins, etc.
Best practices
• Up-to-date policy that bans harassment, discrimination and retaliation
• Two reporting mechanisms
• Annual training of all employees, managers and BOD
• Proper investigation techniques
New protected classes resulting from court decisions…
10
19
What do credit unions need to know?
Pregnancy Discrimination
• Ensure light-duty policies apply to employees with on-the-job injuries apply to pregnant employees too
• Don’t have to create light-duty program – pregnancy doesn’t get a preference
• Engage in interactive procedures to determine appropriate reasonable accommodations
• State laws can require much more of employers
20
Investigating complaints
Proper investigations
Investigate all complaints promptly
Select impartial, trained investigator(s)
Conduct interviews and review evidence
Act discreetly (Can you ensure confidentiality?)
Prevent retaliation
Document investigation
Who, what, where, conclusions, credibility, reasons for discipline
Take appropriate disciplinary action if warranted
11
21
Discipline
Progressive Discipline
Increasingly severe discipline if an employee fails to correct a problem after being given a reasonable opportunity to do so
• Document problem and discipline
• Assess problem and address behavior
• Discuss consequences for failing to comply
Counseling / Oral Warning
Written Warning
Suspension without Pay
Termination
Don’t be afraid
to skip ahead!
22
Discipline
Best practices
Proper policies and procedures
Train managers regarding proper discipline
Document discipline consistently, specifically & factually
Discipline consistently
Consult with employment attorney
Do your employees sign warnings?
12
23
Separation & Termination
24
Voluntary Separation
1. “I quit!”
2. No show, no call
3. Happy (or at least not unhappy) departure
Prepare for transition:
• Attempt to keep employee?
• Written update of work
• Exit interview / exit conversation
13
25
Involuntary Terminations
26
Involuntary Termination
Goal: Avoid claims (and provide best defense)
Proper termination:
1. Starts with job description and responsibilities
2. Use progressive discipline
3. Choose your words (and your reason) carefully
4. Document (non-discriminatory) reasoning
5. Two witnesses
All this will help protect your credit union
14
27
Separation/Termination
Risk Management Tips:
1. Discuss decision to terminate with HR or
your attorney
2. Plan return of credit union property
3. Confirm any legal obligations
4. Prepare final paycheck including unused
sick, vacation if required by policy or
law.
5. Provide reference?
6. Severance agreements?
7. Consult your employment attorney
28
Questions?
608-665-8528
15
29