PSHRM PRESENTATION: SEVEN STEPS TO …...PALMETTO SHRM HARASSMENT 15 2. Hostile Environment - Where employer or supervisors engaged in, or were aware of such offensive remarks, behavior

MOLLY CHERRY [email protected]

PSHRM PRESENTATION:

SEVEN STEPS TO LEGALLY

TERMINATING EMPLOYEES IN SC15 JANUARY 19

PALMETTO SHRM www.nexsenpruet.com

KEY CONSIDERATIONS/BEST PRACTICES

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Know the Law

Employment Contracts

Constructive Discharge Issues

Develop and Consistently Apply Policies

Documentation

Termination Protocols

Additional Considerations

STEP ONE:

UNDERSTAND

APPLICABLE LAWS

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TERMINATION OF AN AT-WILL EMPLOYEE

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The Law:

Employees at-will may quit or be fired at any time, with or without

notice, and with or without cause. Either party may terminate at any

time for any reason, or no reason at all.

PALMETTO SHRM www.nexsenpruet.com 5

But not so fast…



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The Exceptions:

1. The Public Policy Exception

‣ Where retaliatory discharge of an at-will employee is a violation of a clear mandate of public policy, a cause of action for wrongful discharge exists.

‣ Arises when employer, as a condition of retaining employment, causes an employee to violate the law.

‣ Criminal law, statutes

‣ Ludwick, Garner, Keiger, Stiles



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2. Statutory Exceptions

‣Non-discrimination:

‣ Title VII; ADA; GINA; USERRA; FMLA; ADEA OSHA; NLRA

‣ Jury Duty

‣Filing worker’s comp claim

http://www.google.com/url?sa=i&rct=j&q=&esrc=s&source=images&cd=&cad=rja&uact=8&ved=2ahUKEwibxJaG5tTfAhVvT98KHZmUBn0QjRx6BAgBEAU&url=http://theconversation.com/felons-barred-from-jury-duty-an-unjustified-punishment-91378&psig=AOvVaw1UmrwLQsPe7ashF_iHwvR9&ust=1546714322097475

http://www.google.com/url?sa=i&rct=j&q=&esrc=s&source=images&cd=&cad=rja&uact=8&ved=2ahUKEwibxJaG5tTfAhVvT98KHZmUBn0QjRx6BAgBEAU&url=http://theconversation.com/felons-barred-from-jury-duty-an-unjustified-punishment-91378&psig=AOvVaw1UmrwLQsPe7ashF_iHwvR9&ust=1546714322097475



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3. Handbook

‣A disclaimer is not necessarily a protection from liability

‣S.C.Code Ann. § 41-1-110

‣First page, bold, all caps, underlined, signed by employee

‣Revise any mandatory language relating to progressive discipline


TERMINATION OF AN AT-WILL EMPLOYEETHE EXCEPTIONS

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4. Grievance Rights

‣Public Sector Employees

‣State Employee Grievance Procedure- “just cause”

‣ No termination of employee who files a complaint with the Federal Labor Board

‣ No termination of an employee based on union activity

‣ No termination for whistleblowing. S.C. Whistleblower Statute, S.C. Code Ann. §§ 8-27-10, et seq.


“WARN” ACTWORKER ADJUSTMENT AND RETRAINING NOTIFICATION ACT

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The Law: Employer shall not order plant closing or mass layoff until after 60 days

written notice of such order.

Trigger:

‣ Plant Closing – permanent or temporary shut down of single site of employment of one or more facilities which results in 50 or more employees suffering employing loss in 30 days.

‣ Mass Layoff – Must provide notice if the layoff affects 1/3 of employees and at least 50 employees. If 500+ are affected, the 1/3 requirement does not apply.

STEP TWO:

EMPLOYMENT

CONTRACTS


EMPLOYMENT CONTRACTS

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Does the employee have a written agreement?

1. Employment contract for a defined time period – stated or implied

‣ Offer letter

‣ Other writing

2. Communication of special provisions regarding “grounds for termination”

‣ “just cause”

‣ Guaranteed “progressive discipline”

‣ Prescribed discipline based on nature of offense

STEP THREE:

CONSTRUCTIVE

DISCHARGE


HARASSMENTTWO TYPES FOR SEXUAL HARASSMENT

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1. Quid pro quo – Submission to sexual advances is required to get a job, keep a job, or be promoted.

Requirements:

‣ Plaintiff must be in a protected class;

‣ Subjected to unwelcome sexual harassment, sexual overtures, requests for sex (or dates), sexual remarks, comments, activity which was unwelcome AND offensive to plaintiff;

‣ Subjected to it because of their gender (can be men or women, subjected to heterosexual or homosexual overtures);

‣ Plaintiff’s reaction to conduct had a real and tangible effect on their employment status, pay, or position.


HARASSMENT

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2. Hostile Environment - Where employer or supervisors engaged in, or were aware of such offensive remarks, behavior or conduct, or otherwise created environment that either:

‣ Affected employee’s work performance, or

‣ Created an intimidating, hostile, or offensive work environment giving rise to an intolerable workplace. Conduct must be severe and pervasive.

‣ Reasonable person standard

APPLIES TO SEXUAL HARASSMENT AND OTHER HARASSMENT

HOW TO DEAL WITH

ALLEGATIONS OF

HARASSMENT AND

DISCRIMINATION


HARASSMENTHOW TO DEAL WITH ALLEGATIONS OF HARASSMENT

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‣Prevent Harassment Claims

‣Establish a written Anti-Harassment and Anti-Discrimination Policy

‣Distribute, Explain, Train

‣Establish effective company complaint procedures

‣Designate persons to receive complaints

‣give options


HARASSMENTHOW TO DEAL WITH ALLEGATIONS OF HARASSMENT

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‣Investigate Harassment Claims

‣ Impartial Investigator

‣ Professional Tone

‣ Gather facts, do not make judgments

‣ Immediate Attention – 3 days

‣ Conduct Separate Interviews

‣ Avoid Creating New Claims


HARASSMENT

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‣Document

‣ Document/record investigation

‣ Adhere to handbooks/written procedures

STEP FOUR:

DEVELOP AND

CONSISTENTLY APPLY

POLICIES


WRITTEN POLICIES

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In addition to anti-harassment and discrimination policies or EEO policies:

‣ IT Resources and Communications

‣Social Media

‣Standards of Conduct

‣Anti-violence/weapons


WRITTEN POLICIES

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‣ Proper documentation and implementation of policies and procedures are central to success in avoiding or defending against wrongful discharge claims.

‣ Use clear and concise policy prohibiting behavior at issue.

‣ Obtain employee acknowledgment of policy.

‣ Apply policy. Consistently.

‣ Failure to apply policy previously is problematic.

‣ Failure to apply policy consistently or applying in an unduly harsh manner lead to argument of discriminatory treatment or pretext.

STEP FIVE:

DOCUMENTATION


DOCUMENTATIONGUIDELINES

‣Be timely. As soon as issue arises, address it.

‣Be accurate. Make sure all dates and facts are correct.

‣Be fair. Do not exaggerate.

‣Be kind; only include what is necessary to justify the decision.

‣Stick to facts. No legal conclusions.

‣Remember these can be discoverable in litigation.


COACHING AND DISCIPLINARY ACTION

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‣Disciplinary action may occur when an employee fails to meet the employer’s expectations

‣Coaching or discipline might include:

‣ verbal/written warning, loss of opportunity, probation, unpaid suspension and/or termination

‣Consult handbook. What does it say?


COACHING AND DISCIPLINARY ACTION

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‣Written action plans

‣ State problem areas and establish measurable goals

‣ Clearly set forth expectations and possible outcomes

‣Monitor performance

‣Have the employee sign the plan

‣Don’t guarantee employment during action plan period


DOCUMENTATIONGUIDELINES

‣Note if the employee refuses to sign

‣Put any documentation relating to the coaching or disciplinary

action in the employee’s file.

‣Danger of separate supervisor files!!!

‣DON’T BACKDATE OR CREATE AFTER-THE-FACT

DOCUMENTATION.


DOCUMENTATION

‣DOCUMENTATION DYNAMITE

‣ If termination documentation is prepared significantly after the fact, you may

be handing the terminated employee a factual basis for “pretext.”

‣ Timing is key. Looking for documentation to occur at time decision is made.

‣ Giving varying reasons for termination also may create a question of fact as

to pretext.

‣ Consistency, accuracy and truthfulness are key.


DOCUMENTATION

‣Records should be typewritten, if possible.

‣Handwriting can often be illegible or written too lightly to show up on a photocopy.

‣Events should be recorded either contemporaneously or as soon after the event as possible.

‣If you are unsure whether to report an incident, you should usually err on the side of recording it.


DOCUMENTATION

‣Make sure that the record is as specific as possible.

‣ Give times, dates, persons involved, and document the incident’s effect on

operations. The record should be signed and dated by the supervisor.

‣ If possible, the record should contain the employee’s response

to the action and should be dated and signed by the employee.

‣Never destroy or withhold records (from your attorney or where

litigation threatened, pending or possible).

STEP SIX:

TERMINATION

MEETING


TERMINATION MEETING

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‣Time to allow for privacy.

‣Prepare for and rehearse delivery of

message.

‣ Review documentation.

‣Have a witness.

‣ Consider who should be in the meeting.

‣Be direct.


TERMINATION MEETING

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‣ Be prepared for a negative response.

‣ Do not interject personal feelings.

‣ Outline status of available employee benefits.

‣ Discuss references and messaging, if appropriate.

‣ Be sensitive.


TERMINATION MEETING

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‣Have any severance agreement, or

release, that you intend to ask the

employee to sign prepared and at the

meeting, if possible.

‣The severance agreement documents

the separation—it may or may not

include a release.

‣Severance is not automatic, absent

contractual obligation.


TERMINATION MEETINGENFORCEABILITY OF RELEASES

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‣ Reason for Termination and Effective Date

‣ Consideration

‣ State What is Being Released

‣ General Claims

‣ Specific Statutes – ADEA, Title VII, ADA, etc.

‣ Confidentiality

‣ Ability to Consult Counsel

‣ Time Limitations

‣ At lease 21 Days to Consider

‣ Revocable for 7 Days

MUST HAVE:

STEP SEVEN:

OTHER

CONSIDERATIONS


OTHER CONSIDERATIONS

‣Protect Sensitive Information.

‣Disable Electronic Resource Access.

‣Collect Employer Property.

‣Workplace Violence Concerns.

‣Employee Morale.

‣Defamation Issues.


MOCK SCENARIO #1

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‣ Hired Alex for Construction Position.

‣ Worked for 16 months.

‣ One appraisal on file after her probationary period. One page long, immediate

supervisor (Tom) says she is doing a great job.

‣ Tom has been complaining to you for the past 6 months that Alex has been late to work

repeatedly and has had a bad attitude, is irritable and short with co-workers.

‣ She was late again this morning and stuck her tongue out at him when he admonished her

for being late. He wants to fire her immediately for insubordination.

‣ What do you do?


WHAT IF…?

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‣You learn that Sam is often late, too, though not as much as Alex,

and flipped Tom the bird the week before and Tom just laughed?

‣You discover Alex is pregnant?

‣You meet with Alex and she accuses Tom of a hostile work

environment?


MOCK SCENARIO #2

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‣Hired Cal for Construction Position.

‣Worked for 10 months.

‣One appraisal on file after his probationary period. Four pages long,

immediate supervisor (Tom) says he is doing a good job but

documents several work errors.

‣One written coaching form, dated at six month mark, documenting

work errors.

‣Tom wants to terminate.


WHAT IF…?

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‣ In termination meeting, Cal tells you his work errors are because his

hip injury has gotten worse and he told Tom that last month?

‣Cal gets upset and claims Tom is discriminating against him

because of his age?


MOCK SCENARIO #3

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‣ Hired Teresa for Construction Worker Position.

‣ Worked for 7 months.

‣ One appraisal on file after her probationary period. One page long, immediate

supervisor (Tom) says she is doing a terrible job.

‣ Tom complains to you every day about how loud she is, talks too much about her

weight lifting competitions, doesn’t appear to shower after using the gym, tries to

tell everyone how to do their jobs and is generally not liked by teammates. He is

tired of dealing with complaints from co-workers about body odor and does not

think she is a good fit for the team. He wants to terminate her.

‣ What do you do?


WHAT IF…?

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‣Teresa tells you in the termination meeting that her religion prohibits

her from using any chemical product like deodorant?

‣You terminate Teresa. Several employees ask at a team meeting

the next day why Teresa is no longer with the company. What do

you say?


WHAT IF…?

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‣Teresa was terminated because Tom suspected she had been

falsifying her time cards, in essence being paid for work she was not

doing.

‣A customer calls the next day to ask why Teresa is no longer

employed, explaining that some equipment was missing from their

job site and he wanted to speak with her. What do you say?

www.nexsenpruet.com

MOLLY CHERRYCertified Specialist in Employment and Labor Law

205 King Street, Suite 400, Charleston, SC [email protected]

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PSHRM PRESENTATION: SEVEN STEPS TO …...PALMETTO SHRM HARASSMENT 15 2. Hostile Environment - Where employer or supervisors engaged in, or were aware of such offensive remarks, behavior