Maureen Moeglin Associate Vice President of Human Resources and James Thibodeau Director of Labor Relations and General Counsel Addressing Employee Performance Issues without Running Afoul of the Law

What you will walk away with…. A better understanding of how to use progressive discipline when undesirable conduct occurs. A basic understanding of the Family Medical Leave Act and the Americans with Disabilities Act, as Amended, and the Fair Labor Standards Act and why you should contact Human Resources or the Colleges Legal Counsel before taking action. An appreciation for the importance of detailed, accurate documentation to establish a record of your efforts to help an employee dealing with performance issues and to support potential future disciplinary action.

SUPERVISORS ROLE Counselor Coach

A coach trains the employee, orients him/her to the realities of the workplace and helps the employee remove barriers to optimum work performance. Coaching skills are used most often during the orientation period but are also helpful during performance reviews. COACH

At times, the employee turns to his/her supervisor for help in defining and working through work-related or personal problems. While it is okay to show empathy in these situations and offer some suggestions, do not confuse coaching with counseling and never take on the role of a professional counselor. Instead, encourage the employee to take advantage of the Employee Assistance Program. COUNSELOR

An Effective Coach… clearly states performance expectations explains not only how but also why is consistent and fair praises, communicates, and listens is cognizant of own personal bias seeks feedback and ideas is friendly but avoids personal friendships

Maximize Employee Performance 1.Build their confidence 2.Give good performance feedback 3.Provide improvement resources 4.Teach them to set goals 5.Match them with top performers 6.Catch them doing good things

PERFORMANCE APPRAISAL Performance appraisal is the process of evaluating how well employees perform their jobs when compared to a set of standards and then communicating that information to those employees. Source : Human Resource Management by Robert L. Mathis & John H. Jackson, 9 th Edition, 2000

PERFORMANCE MANAGEMENT A performance management (system) is a set of processes used to identify, encourage, measure, evaluate, improve, and reward employee performance Source: Human Resource Management by Robert L. Mathis & John H. Jackson, 9 th Edition, 2000

ORGANIZATIONAL STRATEGY EMPLOYEE PERFORMANCE PERFORMANCE MANAGEMENT PRACTICES Identify expected performance levels Measure individual performance, then evaluate Provide feedback on individual performance Provide assistance as needed Reward or discipline based on performance PERFORMANCE MANAGEMENT OUTCOMES Development, Productivity, Advancement, Discipline, Pay Raises, Termination, Other ORGANIZATIONAL RESULTS Goals met or not met Source: Human Resource Management by Robert L. Mathis & John H. Jackson, 9 th Edition, 2000

EMPLOYEES NEED A PUSH?

RESOURCES Procedure Memorandum VI-24 Employee Assistance Program Jim (2428); Maureen (x2236)

NON-DISCIPLINARY ACTIONS Are actions that may be taken when performance or conduct problems are first observed and before those problems reach a level that is judged by supervisor(s) to require disciplinary actions

TYPES OF NON-DISCIPLINARY ACTIONS Employee Consultation Clarification of Expectations Reassignment or Transfer (rarely used) Referral to Employee Assistance Program

EMPLOYEE CONSULTATION One-on-one session during which supervisor makes sure the employee is aware of the problem and the consequences of not correcting the problem

EMPLOYEE CONSULTATION ESSENTIALS Describe the behavior you want changed Spell out why the behavior is unacceptable State what changes need to be made Ask the person how he or she will make the change happen State the consequences End on a positive note Retain a written record summarizing the discussion

CLARIFICATION OF EXPECTATIONS Written summary of problem, expectations & plan for improvement Type the documentation Write in the first person (I and You) Direct the employee; dont suggest Communicate clearly Explain deficiency, nature of problem, action necessary

DISCIPLINARY ACTIONS Normal Sequence 1.Oral Reprimand 2.Written Reprimand 3.Imposed Disciplinary Probation 4.Imposed Downgrade – rarely used 5.Suspension - used in special circumstances only 6.Termination of Employment Relationship

ORAL REPRIMAND Initial stepto make sure employee understands there is a problem Conduct in a private setting Low-key (friendly, but firm) Explain the problem(s) & ask for reasons Corrective steps and timeline Answer employees questions Document the conversation

WRITTEN REPRIMAND Formal documentation – includes: Explanation of the problem Review of prior related actions Immediate fixes (steps to take) Consequences of not fixing problem EAP clause, if appropriate Standard signing doesnt mean you agree language Indication of who gets copies

IMPOSED DISCIPLINARY PROBATION Serious intervention Preceded by oral and written Similar to written reprimand Length of probation period determined by Supervisor and HR/General Counsel Approval by Dean, VP, Executive VP and President required

OTHER OPTIONS… Suspension Pending Investigation Sometimes, employee must be removed prior to an investigation; e.g., theft, potential sabotage, disorderly conduct, threat to others MUST contact General Counsel or HR immediately

TERMINATION OF EMPLOYMENT RELATIONSHIP Final step in the disciplinary process Requires approval of the President Documented evidence of efforts made to correct the problems leading to discharge. Just cause requirement invokes due process prior to discharge (exempt employees

DISCIPLINARY ACTIONS Before imposing, consider: Seriousness or cumulative nature of the offense Correlation between seriousness of offense and employees record Level and type of the employees positionmanagers held to higher standard

RED FLAGS Im being sexually harassed This is a hostile work environment Any indication that discrimination is involved (race, gender, etc.) Any indication that there may be health issues (FMLA, ADA)

FAMILY MEDICAL LEAVE ACT (FMLA) Employee Eligibility - To be eligible for FMLA benefits, an employee must: work for a covered employer; have worked for the employer for a total of 12 months; have worked at least 1,250 hours over the previous 12 months

LEAVE ENTITLEMENT A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons: for the birth and care of a newborn child of the employee; for placement with the employee of a son or daughter for adoption or foster care; to care for a spouse, son, daughter, or parent with a serious health condition; to take medical leave when the employee is unable to work because of a serious health condition; or for qualifying exigencies arising out of the fact that the employees spouse, son, daughter, or parent is on active duty or call to active duty status as a member of the National Guard or Reserves in support of a contingency operation.

LEAVE ENTITLEMENT Contd Maintenance of Health Benefits - If applicable, arrangements will need to be made for employees to pay their share of health insurance premiums while on leave. Job restoration to the employees original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.

QUALIFIED INDIVIDUAL WITH A DISABILITY - ADA Anyone who: has a physical or mental impairment that substantially limits one or more major life activities of such individual has a record of such an impairment is regarded as having such impairment is qualified for a job and can perform its essential functions with or without reasonable accommodation

On January 1, 2009, the ADAAA went into effect, making it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the statute. The EEOC regulations implement the ADAAA -- in particular, Congresss mandate that the definition of disability be construed broadly. CHANGES TO THE ADA

RULES OF CONSTRUCTION 1. Substantially limits shall be construed broadly to the maximum extent permitted by the terms of the ADA. 2. Comparison is to most people in the general population not a comparison to those similarly situated 3. Assessing whether individual is substantially limited should not require extensive analysis

RULES OF CONSTRUCTION (contd) 4. Disability is still determined on a case-by-case basis 5. Scientific, medical, or statistical evidence usually not required 6. Mitigating measures will not be considered

RULES OF CONSTRUCTION (contd) 7. Episodic or in remission limitations will be considered as if active 8. Only one major life activity needs to be substantially limited 9. Six month time frame does not apply

CHANGES TO THE ADA CONTINUED The regulations make it easier for individuals to establish coverage under the regarded as part of the definition of disability. The regulations clarify, however, that an individual must be covered under the first prong (actual disability) or second prong (record of disability) in order to qualify for a reasonable accommodation.

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