Three Strikes and You’re Out! Part Two: When Good Employees Turn Bad - Termination Tips Jim Drozdowski V.P. & General Counsel North Coast Container Corp.

When good employees turn bad…  Ask questions first  Create a paper trail  Keep contemporaneous notes of the investigation  Who, what, when, where  Any explanation – or admission – by the employee  Date & author  Throw away drafts  Be professional – your audience might include a jury  If discipline is warranted, document when it was given, as well as any marching orders

Termination Checklist #1: Is termination justified:  Are the reasons clearly identified and do they make sense?  Are the reasons lawful & non- discriminatory?  Are they documented?

Termination Checklist #2: Should the employee be surprised by the Company’s decision?  Was the employee warned?  Did he/she have a chance to fix the problem?  Was he/she warned about the consequences of little or no improvement?

Termination Checklist #3: Are there any loose ends that need to be tied up?  Non-compete  Company property  Last paycheck  Any accrued benefits

Termination Checklist #4: How will you break the news to the employee?  Who, when and where  Any witnesses  Verbal or written  Security concerns

Termination Checklist #5: How should I handle the aftermath of the decision?  What affect on morale?  How should the decision be communicated to others?  What to do about references?

The Interplay Between Evaluations and Discipline Proprietary & Confidential

A Case Study Into the Critical Importance of Consistency….  Company hires accountant at age 62  Terminates 10 months later  Reasons given?  “Temporary assignment” had run out  Poor work performance Proprietary & Confidential

Case Study on Consistency:  Court allows age discrimination claim to proceed  Handbook definition was “inconsistent” with alleged temporary status  Employer’s workflow was “inconsistent” with expiration of temp assignment  Termination for “poor performance” was “inconsistent” with treatment of other employees with similar performance evals Proprietary & Confidential

Case Study on Consistency:  As a result, a jury must decide:  Is the employer telling the truth?  Or was age the motivating factor?  Or was it the employee’s wife’s significant health problems?  Gaglioti v. Levin Group, Inc. (6 th Cir. 2012) Proprietary & Confidential

During the Performance Review Process…. …. Apply all of the parameters consistently:  Draw a bright line between “exceptional” and “satisfactory” behavior  Before finalizing, consider and compare the group as a whole  Include only meaningful comments (not : “no issues here”)  Complete the forms with the notion that outsiders may review them Proprietary & Confidential

Retaliation Proprietary & Confidential

14 Employment Laws with Anti- Retaliation Protections:  Age Discrimination in Employment Act (ADEA)  Americans with Disabilities Act (ADA)  Civil Rights Act of 1964 (Title VII)  Equal Pay Act (EPA)  Fair Labor Standards Act (FLSA)  Family and Medical Leave Act (FMLA)  Occupational Safety and Health Administration (OSHA) regulations  State Harassment/Workers’ Compensation Laws

Retaliation Claims  Elements of a Claim  Protected Activity  Material Adverse Action  A Link Between the Two

Proprietary & Confidential The alley’s are full of contractors as well as the space behind the building between Acocks and the Arena garage and no one will answer any calls. Do I need to fix this myself? Tom, I may need your help here.

Proprietary & Confidential We need to do something about this. This falls under Michelle’s responsibilities and I am not going to sit idly by and watch my client circle around me due to our inability to manage this process with Michelle. Something needs to be done and it needs to be done now!

Proprietary & Confidential Are you available to talk about this today??

How to prevent/defend against liability for retaliation Implement clear and concise policies Enforce policies consistently Conduct candid performance reviews Investigate all complaints in good faith Make employees aware of the policies and reporting procedures

Don’t wait to terminate…. Restaurant manager decides to terminate server Goes on vacation first Server has epileptic seizure Terminated two days later Court allows retaliation claim, where no proof to show decision to fire predated seizure  Holmes v. Cutchall Mgt., (D. Kan., July 26, 2012)

Questions? Proprietary & Confidential