1. GUIDELINES FOR DISCIPLINE AND TERMINATION IN THE WORKPLACE Presented by Megan M. Ruwe (612) 604-6711 mruwe@winthrop.com

2. Disciplinary Policies Can consist of detailed rules and steps or general policies with possible progressive disciplinary steps. The more specific a policy is, the more likely an employee could argue that a contract has been created, requiring the employer to follow each step in every case.

3. The Progressive Disciplinary System Benefits of a Progressive Disciplinary System: –Helps employees improve behavior or performance; –Provides a sense of fair treatment; and –Benefits an employer as evidence in a lawsuit of termination for nondiscriminatory reasons.

4. The Progressive Disciplinary System Problems with a Progressive Disciplinary System: –Restricts the employer’s ability to discipline an employee; and –Exposes an employer to a wrongful termination claim. An employee may argue he/she is not subject to the same disciplinary process afforded to other similarly-situated employees.

5. The Progressive Disciplinary System To avoid liability, an employer should: –Avoid a concrete set of rules; –Make clear that the type of discipline used is to be used at the employer’s discretion; and –Avoid creating a reasonable expectation of discipline through a pattern of past practices.

6. Steps In The Disciplinary Process Coaching Oral and Written Warnings Performance Improvement Plans Suspension or Probation Last Chance Agreements Termination

7. Coaching It may be appropriate in certain situations to discuss an issue with an employee the first time it arises and not record it as discipline. Address the issue in some fashion. Do not ignore it. Document each coaching session.

8. Oral and Written Warnings A “verbal” record is never enough. –Oral and written warnings should be documented and placed in an employee’s personnel file. Ask employees to sign copies of written warnings. Both oral and written warnings should be conducted face to face, by the employee’s direct supervisor, if possible. If the employee refuses to sign a written warning, document the refusal.

9. Guidelines for Oral and Written Warnings Documentation should state the problem and explain how you want the employee’s behavior or performance to change. Explain the disciplinary process. Clarify what will happen if the problem continues. Ensure all documentation and steps are uniform to prevent a showing of discriminatory intent. Follow through.

10. Performance Improvement Plans Use a PIP only if you actually want the employee to succeed. PIP goals must be realistic and achievable. Monitor the employee’s performance and provide periodic updates on the employee’s progress. Document any actions taken during the PIP to help the employee meet his or her goal(s).

11. Guidelines for Performance Improvement Plans Describe the problem or performance deficiency in detail. Set forth measurable expectations. Structure increased reporting by the employee and monitoring by the manager in connection with the PIP. Create a system of interim reporting and feedback. Include a disclaimer that the PIP does not create a contract.

12. Suspension or Probation A suspension or probation may be appropriate. A PIP may accompany the suspension or probation. Written documentation is key.

13. Last Chance Agreements (if applicable) A Last Change Agreement is the final step before termination. LCAs allow employers to be much more explicit with respect to the next step in the disciplinary process (termination). LCAs are typically considered more of an ultimatum.

14. Pre-Meeting Preparation Questions –Is the violated work rule connected to a valid business concern? –Did the employee have notice of the work rule? –Was the work rule consistently applied? –Was a proper investigation conducted? –Did the investigation provide necessary information? –Were the decisions reached and acted on promptly? –Is the punishment consistent with punishment for similar infractions?

15. In-Meeting Specifics State the problem clearly and explain the desired change. Explain the disciplinary process. Provide an opportunity for employee input and listen to the employee. Do not ask questions that could be considered investigatory or suggest an incomplete investigation.

16. Post-Meeting Matters Follow Through –Disciplinary actions should be enforced diligently and consistently. –Failure to do so can result in decreased effectiveness of a disciplinary policy and potential liability. –Keep up documentation.

17. TERMINATIONS

18. Making the Discharge Decision The decision to terminate an employee always involves risk, and legal complications may arise. The decision not to terminate risks workplace violence, a legal claim for negligent retention, and the potential loss of other valued employees.

19. Making the Discharge Decision Final considerations before termination: –Review all relevant policies. –Review past practices to ensure consistent treatment with other employees. –Carefully review all documentation. –Determine whether another disciplinary step is more appropriate.

20. Common Employment Litigation Claims Discrimination Harassment Retaliation Breach of Contract Whistleblower Defamation Tortious Interference with Contract Infliction of Emotional Distress Invasion of Privacy

21. Legal Considerations Discrimination –Different treatment based upon legally protected categories; –Failure to make reasonable accommodations on the basis of disability or religion; –Harassment; and –Retaliation.

22. Legal Considerations Breach of Contract –An employer can unintentionally create a contract with an employee: In a Job Interview; In an Offer Letter; With Simple Verbal Representations; and Through Language In An Employee Handbook or Policies.

23. Legal Considerations Whistleblower –A whistleblower claim can occur when an adverse employment action is taken based upon an employee’s good faith report of a violation or suspected violation of the law to a third party.

24. Legal Considerations Defamation –Can occur when an employer makes a communication to someone that is false and tends to harm the employee’s reputation.

25. Legal Considerations Tortious Interference with Contract –Can arise if an employer tortiously or maliciously interferes with an employment relationship. –Occasionally arises when an employee is terminated in violation of an employment contract and the employee claims that the action was taken with malicious intent.

26. Legal Considerations Infliction of Emotional Distress –Can be intentional or negligent. –Requires some sort of extreme or outrageous conduct by an employer that directly causes severe emotional distress and real physical injury.

27. Legal Considerations Invasion of Privacy –May arise from investigation procedures. –Can an employer search desks or lockers, listen to voicemails, or read e ‑ mails or texts? –Generally, searches are acceptable if they are contained in scope and an employee is aware he or she has no reasonable expectation of privacy.

28. Carrying Out The Discharge Process Prior to discharge, an employer should: –Determine the reason(s) for termination; –Make certain that everyone involved understands and agrees on those reasons; and –Make sure that the reasons can be explained in a concise and logical manner.

29. Carrying Out The Discharge Process Schedule the meeting shortly in advance. Holding the meeting in person, unless employee violence is a concern. The employee’s contact with other employees should be minimal when coming to or leaving the meeting.

30. Carrying Out The Termination The person who made the decision to terminate should deliver the message. Be decisive, honest and brief. The termination decision is not reversible or negotiable.

31. Wrapping up Obtain any company property, such as: –Keys –ID cards –Credit cards Make arrangements for the employee to gather personal belongings. If possible, provide the employee with his/her final paycheck.

32. Decision Making Checklist Ask: Would this seem “fair” to an uninterested party? Comply with policies and practices. Review all supporting documentation. Have all the facts surrounding the termination decision reviewed by a neutral third party such as Human Resources or an attorney.

33. Decision Making Checklist Thoroughly consider all potential claims the employee may bring. Review how similarly-situated employees have been treated. Determine whether the company’s position can be proven.

34. Discharge Implementation Checklist Be brief and to the point. Be truthful and candid. Don’t give an indication that the decision is reversible or negotiable. Recognize the employee’s contribution, if appropriate.

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