HR TOOLKIT: PERFORMANCE MANAGEMENT Webinar Wednesdays HR TOOLKIT: PERFORMANCE MANAGEMENT Anna Elento-Sneed September 2017

Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary September 13, 2017

DISCUSSION TOPICS Distinguishing Performance Problems from Misconduct Employer’s Legal Obligations Using Performance Evaluations Using Discipline Special Situations Discipline & Discharge Process Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary September 13, 2017

WHAT IS A PERFORMANCE PROBLEM? Inability to perform job functions E.g. Physical or mental requirements, maintenance of skills or license, attendance Failure to follow standard operating procedures (SOPs) E.g. Attendance procedures, safety procedures, operating procedures Failure to meet performance standards E.g. Production requirements, customer service, deadlines Inability to work without close supervision E.g. Ability to work away from office, complete routine repetitive tasks, exercise judgement Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary September 13, 2017

WHAT IS MISCONDUCT? Violation of laws or regulations E.g. Traffic laws, safety regulations, laws/regulations on workplace violence Violation of contract provisions E.g. Collective bargaining agreement, commercial contracts Violation of company rules E.g. Rules on timekeeping, cash handling, confidentiality Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary September 13, 2017

PERFORMANCE PROBLEMS v. MISCONDUCT Focus on job functions, standard operating procedures, performance standards, and performance expectations Did employee fail to meet them? Processes for addressing issues Counseling & retraining Accommodation process* Performance evaluations Termination Misconduct Focus on applicable laws, regulations, contract requirements, and rules Did the employee violate them? Processes for addressing issues Progressive discipline Termination Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary September 13, 2017

EMPLOYER’S LEGAL OBLIGATIONS Clear requirements Work rules (employee handbook & written SOPs) Essential job functions (job descriptions) Performance standards (performance evaluations) Legitimate, nondiscriminatory reasons for employment action At will employment is not a defense Uniform & consistent application of the requirements Need to train managers & supervisors Equal treatment Reasonable accommodation Pregnancy; Disability; Religious practices; Victims of domestic violence/sexual abuse Documentation Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary September 13, 2017

USING PERFORMANCE EVALUATIONS Powerful communication tool Should be linked to job description and performance standards Job description describes what employee is expected to do Performance standards specify how well the employee must perform each function Performance evaluation documents whether the employee is hitting the mark Documents performance strengths & weaknesses Demonstrates “legitimate, nondiscriminatory business reasons” for employment actions Spend time to do it right Beware of “grade inflation” Avoid vague comments – give examples Be honest Must be consistently & uniformly implemented Must be communicated in writing and orally Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary September 13, 2017

TERMINATING EMPLOYEES FOR PERFORMANCE It is not a quick process Often takes 2-3 years If you want it to be quicker, must evaluate more often Courts and agencies often expect “progressive evaluations” Initial training Remedial training Performance improvement plans Performance evaluations should document consistently unacceptable performance over prolonged period of time Inconsistent evaluations are problematic Conflicting evaluations by multiple supervisors are problematic Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary September 13, 2017

USING DISCIPLINE Progressive Discipline Termination Oral warnings Written warnings Suspension “Last chance” agreements Termination Involuntary separation from employment This is not the same as a layoff Used for: Last step in progressive discipline process Serious misconduct Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary September 13, 2017

USING DISCIPLINE Documenting Discipline Identify which rule(s) was/were violated Summarize the infraction Specify what type of discipline is being imposed If it is oral warning, the documentation can be memo to file If it is suspension, specify length and dates of suspension Specify date of discipline action Note what will happen if employee commits misconduct again Have employee acknowledge receipt File document in personnel file Note: Retain investigation documentation in separate file Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary September 13, 2017

USING DISCIPLINE Consistent, uniform application is the key Date Employee Dept. Infraction Discipline 1/10/16 John Smith Maui Tardy Oral Warning 2/1/16 Jane Doe Oahu Written Warning 5/12/16 Lucy Lee HIPAA Breach 10/2/16 1/5/17 2/5/17 3/4/17 Suspension 3/12/17 Termination 3/13/17 Theft Consistent, uniform application is the key Work with HR to create a “discipline log” Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary September 13, 2017

SPECIAL SITUATIONS Aging Employees Typical issues Risks Inability or refusal to adapt to changing times Decline in physical or mental abilities Increasing health problems Risks Age discrimination claims Disability discrimination claims Possible Approaches Transfer to different position Disability retirement Performance improvement plan prior to termination Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary September 13, 2017

SPECIAL SITUATIONS Attendance Typical issues Proliferation of mandated leaves of absence has created “entitlement” mentality Problem compounded by number of leave programs provided by contract or voluntarily by company policy Analyze current policies adopt and enforce company-wide standard Coordinate administration of leaves (i.e. policy summaries, request forms, benefit coverage, tracking) Adopt uniform attendance policy addressing essential functions, excessive absence, leave abuse, tracking, & discipline Educate management & employees on policies Consistently apply attendance program Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary September 13, 2017

SPECIAL SITUATIONS Disabled Employees Typical issues Risks Inability to perform non-essential job duties Inability to perform essential job duties Risks Disability discrimination claims Possible Approaches Interactive reasonable accommodation process Get ADA opinion from employee’s doctor Negotiate accommodations with employee and his/her physician Document process Require employee to perform all essential functions Monitor performance Document performance deficiencies carefully Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary September 13, 2017

SPECIAL SITUATIONS Employees who are victims of discrimination, harassment, domestic violence or abuse Typical issues Inability to focus on job functions Attendance problems Stress claims Risks Equal employment opportunity claims Workers’ compensation claims Possible Approaches Stop performance evaluation process and conduct EEO investigation Remediate any discrimination, harassment and/or retaliation problems Restart performance evaluation process Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary September 13, 2017

SPECIAL SITUATIONS Employees Who Accuse Supervisor Of Discrimination, Harassment Or Retaliation Typical Issues Claims are in response to criticisms of performance Employees begin asserting claims, including complaints of stress Risks Equal Employment Opportunity Claims Workers’ Compensation Claims Possible Approaches Stop performance evaluation process and conduct EEO investigation Remediate any discrimination, harassment and/or retaliation problems Assign new supervisor Start performance evaluation process all over Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary September 13, 2017

SPECIAL SITUATIONS Employees Who “Whistle Blow” Typical Issues Risks Claims are in response to criticisms of performance Employees begin asserting claims, including complaints of stress Risks Whistleblower claims Workers’ Compensation Claims Possible Approaches Stop performance evaluation process and conduct investigation into alleged unlawful, unsafe and/or unethical behavior Remediate any problems Assign new supervisor – particularly if the offender was the supervisor Start performance evaluation process all over Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary September 13, 2017

DISCIPLINE & DISCHARGE PROCESS Review reasons for the action Are the reasons non-discriminatory Does action violate public policy Have promises been made to employee which would be broken by proposed action Review procedures leading to the action Employee aware of policy or rule Fair & complete investigation conducted Company’s procedures followed Similarly situated persons treated the same Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary September 13, 2017

DISCIPLINE & DISCHARGE PROCESS Document, Document, Document Complaint or report of infraction Investigative notes (witness statements) Backup documentation Rebuttals by employee Decision Exit interview Outprocessing documents Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary September 13, 2017

DISCIPLINE & DISCHARGE PROCESS Control the manner of the discipline or discharge Be prepared Ensure privacy Be clear, deliver the message, don’t debate Take notes Conduct an exit interview Control statements regarding the disciplinary action or discharge Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary September 13, 2017

SEVERANCE AGREEMENTS Not a foolproof solution Get legal advice Must be carefully drafted Requires certain clauses, by law Employees age 40 or more must be given time to consider & revoke Employees should be allowed to consult with an attorney Cannot be presented as “take it or you’re fired” If that is the situation, agreement can be submitted to court as evidence of “bad faith” Can be expensive Must have extra money in order to get enforceable release Amount of settlement can create tax issues Get legal advice Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary September 13, 2017

FINAL THOUGHTS Performance evaluations and terminations take planning and time Critical for you to demonstrate legitimate, non-discriminatory reasons Documentation is critical Work with HR When in doubt, seek out legal advice Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary September 13, 2017