1. EFFECTIVE DOCUMENTATION In Search of Improved Performance

2. Today, we will discuss... Why Document Why Document Types of Documentation Types of Documentation Basic Rules of Effective Documentation Basic Rules of Effective Documentation Progressive Discipline Process Progressive Discipline Process Personnel Files Personnel Files Terminations Terminations

3. Top Six Supervisor Excuses Takes too much time Takes too much time The violation wasn’t that serious The violation wasn’t that serious Last time I got in trouble for saying the wrong thing Last time I got in trouble for saying the wrong thing I don’t want to be mean I don’t want to be mean Only HR cares about the paperwork Only HR cares about the paperwork HR never let’s us fire anyone anyway HR never let’s us fire anyone anyway

4. Personnel File Maine Law – “… a personnel file includes, but is not limited to, any formal or informal employee evaluations and reports relating to the employee’s character, credit, work habits, compensation and benefits, and nonprivileged medical records or nurses’ station notes relating to the employee that the employer has in the employer’s possesion (26 M.R.S.A. Section 631) Maine Law – “… a personnel file includes, but is not limited to, any formal or informal employee evaluations and reports relating to the employee’s character, credit, work habits, compensation and benefits, and nonprivileged medical records or nurses’ station notes relating to the employee that the employer has in the employer’s possesion (26 M.R.S.A. Section 631)

5. Types of Documentation Anecdotal Notes Anecdotal Notes E-Mail (to employee and/or others) E-Mail (to employee and/or others) Memo (to self or employee) Memo (to self or employee) Letter of Clarification Letter of Clarification Detailed Performance Improvement Plan Detailed Performance Improvement Plan Verbal & Written Warning Verbal & Written Warning Annual Performance Evaluation Annual Performance Evaluation

6. What is Fair? At-Will Employment No reason is necessary No reason is necessary Can’t be discriminatory, retaliatory or illegal in any way Can’t be discriminatory, retaliatory or illegal in any way No Notice No Notice

7. Exceptions to At Will Doctrine Statutory Protection Statutory Protection eg: Discrimination, Retaliation eg: Discrimination, Retaliation Contract Contract Expressed Specific Agreement Expressed Specific Agreement Organizational Policy Organizational Policy Handbook Handbook Tort Tort Public Policy Public Policy

8. Just Cause Pen Bay Healthcare is a “Just Cause” employer for non- supervisory/management employees who have successfully completed their probationary period Pen Bay Healthcare is a “Just Cause” employer for non- supervisory/management employees who have successfully completed their probationary period Must have “just cause” to discipline, suspend or terminate Must have “just cause” to discipline, suspend or terminate

9. What is Fair “Just Cause” Must have legitimate reason for action Must have legitimate reason for action Must follow progressive discipline “guidelines” Must follow progressive discipline “guidelines” Can’t be discriminatory, retaliatory, or illegal in any way Can’t be discriminatory, retaliatory, or illegal in any way

10. Discrimination Litigation Employee Prima Facie Case Employee Prima Facie Case In protected class In protected class Adverse Action Adverse Action Causal Connection Causal Connection Employee - Final Burden Employee - Final Burden Pretext Pretext Real reason is discriminatory Real reason is discriminatory Employer Responds-Defends Employer Responds-Defends Articulate a legitimate non- discriminatory reason Articulate a legitimate non- discriminatory reason

11. Risky Business Employment litigation continues to increase in numbers and $$$ Employment litigation continues to increase in numbers and $$$ More cases More cases Average EEOC litigation award: $263,945 Average EEOC litigation award: $263,945 Additional Costs Additional Costs Attorneys (Plaintiff & Defendant) Attorneys (Plaintiff & Defendant) Our (employer) time Our (employer) time Personal Liability for Managers Personal Liability for Managers In some cases In some cases

12. Why Should We Care? Best way to improve performance Best way to improve performance New employee may be hard to find New employee may be hard to find Training Costs Training Costs Employee Morale Employee Morale Company Reputation Company Reputation Lawsuits are very unpleasant (and expensive) Lawsuits are very unpleasant (and expensive) Personal Liability Personal Liability Others? Others?

13. Types of Performance Problems Skills Skills Effort Effort Attitude Attitude Misconduct Misconduct Attendance Attendance Others? Others?

14. Progressive Discipline Verbal Verbal (must be documented in writing and in Human Resources file) (must be documented in writing and in Human Resources file) Written Written Suspension Suspension Discharge Discharge

15. Effective Documentation Begins with…... Open & Honest Communication of performance & behavior expectations Open & Honest Communication of performance & behavior expectations Orientation Orientation 90 day Probationary Period Evaluation 90 day Probationary Period Evaluation

16. Investigating an Issue ……before your document Fact Finding with Employee(s) Fact Finding with Employee(s) Reviewing Legal Compliance Reviewing Legal Compliance Comparing Successful Human Resource Practices Comparing Successful Human Resource Practices Aligning with Strategic Goals Aligning with Strategic Goals

17. Fact Finding with Employee Explain problem (be specific) Explain problem (be specific) Use facts & observations, not summary conclusions Use facts & observations, not summary conclusions Ask: Why has their performance/behavior slipped? Ask: Why has their performance/behavior slipped? Listen to their side of the story Listen to their side of the story Clarify expectations Clarify expectations

18. Fact Finding with Employee Ask: What assistance they may need to improve performance Ask: What assistance they may need to improve performance Discuss consequences of continued poor performance Discuss consequences of continued poor performance Notify employee that you will follow up with memo, letter or other documentation Notify employee that you will follow up with memo, letter or other documentation

19. Legal Compliance What are the legal restrictions applicable to this situation? What are the legal restrictions applicable to this situation? Discriminatory issues Discriminatory issues Handbook Handbook Contract Contract Promise Promise Used any benefits, legal rights Used any benefits, legal rights

20. Successful HR Practices What are the relevant human resources issues that must be addressed? What are the relevant human resources issues that must be addressed? Motivation Motivation Notice Notice Experience Experience Recruitment Recruitment Others? Others?

21. Strategic Alignment Mission: With the top talent available, provide the highest quality patient care/service Mission: With the top talent available, provide the highest quality patient care/service Culture: Focus is on quality patient care/service and employee development Culture: Focus is on quality patient care/service and employee development Values: attention to detail and hard work Values: attention to detail and hard work

22. Additional Rules for Good Documentation Relate to other documentation/discussions Relate to other documentation/discussions Include a date, and be up to date Include a date, and be up to date Make sure it is timely Make sure it is timely LISTEN for employee response LISTEN for employee response

23. Who Prepares and Reviews the Documentation? First level supervisor/manager First level supervisor/manager Second level manager/VP or Executive Director Second level manager/VP or Executive Director Human Resources Human Resources When applicable - by legal counsel When applicable - by legal counsel

24. Basic Rules Be specific about the problem Be specific about the problem Use facts and observations, not summary conclusions Use facts and observations, not summary conclusions State the obvious (e.g. this behavior is unacceptable) State the obvious (e.g. this behavior is unacceptable) Be specific about the expectations Be specific about the expectations Don’t sugarcoat the issues--explain consequences clearly Don’t sugarcoat the issues--explain consequences clearly

25. Documentation Presentation Not delivered at fact finding session Not delivered at fact finding session Review with employee Review with employee Solicit Comments Solicit Comments Listen! Listen! Advise employee of grievance rights Advise employee of grievance rights Signatures??? Signatures??? Send to Employee’s Human Resources File Send to Employee’s Human Resources File

26. Annual Performance Evaluations Ensure that you cover the entire period and are consistent with other documentation Ensure that you cover the entire period and are consistent with other documentation Don’t be hesitant to be honest - but keep it professional Don’t be hesitant to be honest - but keep it professional Recognize the significance of the evaluation Recognize the significance of the evaluation Follow rules for good documentation Follow rules for good documentation There should be no surprises for the employee There should be no surprises for the employee

27. Terminations Must be approved by Human Resources (suspensions too) Must be approved by Human Resources (suspensions too) Should have two members from management present. This should be a very brief meeting Should have two members from management present. This should be a very brief meeting Do not present the employee with any written documentation a this time Do not present the employee with any written documentation a this time

28. Terminations (cont’d) Advise employee of grievance rights Advise employee of grievance rights Refer employee to Human Resources for what will happen concerning pay, benefits, references, unemployment etc. Refer employee to Human Resources for what will happen concerning pay, benefits, references, unemployment etc. Prepare a written summary of the events leading up to the termination and forward to Human Resources Prepare a written summary of the events leading up to the termination and forward to Human Resources

29. Terminations--Written Reason “…an employer shall upon written request of the employee give the employee the written reasons for the termination of that person’s employment. An employer who fails to satisfy this request within 15 days of receiving it may be subject to a forfeiture of not less than $50 nor more than $500 (M.R.S.A. Section 630) “…an employer shall upon written request of the employee give the employee the written reasons for the termination of that person’s employment. An employer who fails to satisfy this request within 15 days of receiving it may be subject to a forfeiture of not less than $50 nor more than $500 (M.R.S.A. Section 630)

30. Final Words Focus on positive outcomes! Focus on positive outcomes!