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Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (404) 231-1400 Presented by: Clarence Belnavis Phone: (503) 205-8045.

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Presentation on theme: "Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (404) 231-1400 Presented by: Clarence Belnavis Phone: (503) 205-8045."— Presentation transcript:

1 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (404) 231-1400 Presented by: Clarence Belnavis Phone: (503) 205-8045 Email: cbelnavis@laborlawyers.com Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® Performance Management- Effective Communication Atlanta · Charlotte · Chicago · Columbia · Dallas · Denver · Fort Lauderdale · Houston · Irvine · Kansas City · Las Vegas Louisville · New Jersey · New Orleans · Orlando · Philadelphia · Phoenix · Portland, ME · Portland, OR · San Diego · San Francisco · Tampa www.laborlawyers.com © 2010 Fisher & Phillips LLP OCHIN Learning Forum, November 15-16, 2012

2 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 Employment at-willEmployment at-will Statutory & common law exceptionsStatutory & common law exceptions Juries view work-related cases differentlyJuries view work-related cases differently REFRESHER

3 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 Screen for the “right” employee Employee handbook Orientation Introductory period IMPORTANT FOUNDATIONS

4 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 PURPOSE OF EVALUATIONS Provide an opportunity to observe performance Express observations objectively Evaluate employee potential Identify need for training/guidance Advise employee of strengths and weaknesses

5 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 BENEFITS OF EVALUATIONS TO EMPLOYER Assure consistent treatment of employees Inventory employees’ skills and abilities Provide objective support for discipline Improve performance and efficiency

6 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 BENEFITS OF EVALUATIONS TO EMPLOYEES Satisfy need to know Constructively raise awareness of weaknesses Prevent unrealistic self-evaluations and expectations for the future Provide for upward feedback

7 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 PITFALLS IN EVALUATING EMPLOYEES The “halo” effect Letting one incident affect the whole evaluation Being influenced by prior evaluations Evaluation without a proper standard Failure to cite critical incidents Not allowing enough time

8 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 PLANNING THE EVALUATION INTERVIEW Have the employee do a self-evaluation Outline the major points Anticipate the employee’s reaction Be prepared to support your evaluation Be clear about what you want the employee to do Have a plan in mind for helping the employee improve

9 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 GOAL The employer’s primary goal is to rehabilitate poor performers.

10 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 DISCIPLINARY WARNINGS Be objective. Don’t hesitate to give them when warranted. Check facts before putting them in writing. Tell employee what will happen if the incident happens again or if no improvement occurs, i.e., immediate discharge.

11 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 DOCUMENTING DISCIPLINE Every warning should end with: “Repetition of this conduct, failure to follow any of our normal work rules or rules of conduct or to meet our standards of performance will result in further disciplinary action, up to and including immediate termination of your employment.” “Sustained and immediate improvement.”

12 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 You write to an employee: “You have a bad attitude and are insubordinate.” Can you document this problem better? How? SCENARIO

13 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 An employee’s work is not neat. You write him a memo that “your work is sloppy.” Can you document this problem better? How? Should you require the employee to sign the memo? SCENARIO

14 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 An employee has attendance problems. You write her a memo saying that “you’re habitually late and have poor attendance.” Can you document this problem better? How? What if the employee refuses to sign the disciplinary memo? SCENARIO

15 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 An employee has problems dealing with your customers. You write a memo saying “you’re getting too many complaints from customers.” Can you document this problem better? How? SCENARIO

16 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 You suspect an employee violated the drug & alcohol policy. You ask the employee to take a drug test. Before you can make arrangements to get him to the lab, he leaves work. A few hours later his wife calls and says he checked into rehab. Can you discharge this employee? For what? When? How? SCENARIO

17 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 A white male employee under 40 is called for military service. You grant him a military leave. Ninety days later he returns. Four months later you suspect him of theft. Does the employer have any special obligation to him or can you just fire him? SCENARIO

18 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 Discharge is necessary Key elements should be present BASIC PRINCIPLES

19 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 DISCHARGE IS NECESSARY Improves or maintains productivity by removing poor performers Gives employees a clear direction as to employer expectations Avoids morale problems due to failure to deal with poor performers

20 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 KEY ELEMENTS Consistent Timely Impartial Progressive Appropriate

21 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 TYPES OF DISCHARGE Rule violations Performance problem

22 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 RULE VIOLATIONS Harassment Injuries & Accidents Leaving Early Misuse of Property Poor Performance Sleeping or Inattention Solicitation or Distribution Substance Abuse Tardiness Theft Unlawful Activity Unsafe Work Practices Absenteeism Breach of Confidence Company Premises Conflict of Interest Damage to Property Discourtesy or Disrespect Fighting or Threats Weapons Fraud or Dishonesty Gambling Gifts or Gratuities Security violations

23 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 RULE VIOLATIONS Rule? Notice of the rule? Uniform enforcement of the rule? Proper documentation available? Surprise to employee? Terminate with dignity.

24 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 Performance standard? Notice of the standard? Uniform enforcement of the standard? Proper documentation available? Surprise to employee? Terminate with dignity. POOR PERFORMANCE

25 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 THE “CLEAN” RULE Consider the facts Learn the employee’s, manager’s and witnesses’ stories Evaluate prior discipline for similar offenses Analyze risk Narrow potential options and decide

26 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 THE “NEAT” RULE Notice Explanation Assistance Time to Improve

27 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 3 P’S OF DISCIPLINE People Procedures Paperwork

28 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 PEOPLE Who should communicate the decision? Does that person have: Skills and personal qualities to effectively communicate decision? Knowledge of the facts?

29 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 PEOPLE  Did the person communicating the decision hire or promote the employee?  Is that person in the same protected class as the employee?  Who else should witness discharge?  What role should HR play?  Should legal counsel be involved?

30 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 PROCEDURES Preliminary Review  Require advance approval  Consider potential legal challenges  Review documentation available  Recognize oral testimony after the fact is never as convincing as documentation  Consider the employee’s story  Suspend and review

31 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262  Fully investigate before acting  Review past discipline for comparators  Was progressive discipline used?  Review past discipline for impact on protected classes  Identify a precipitating event  Avoid delay PROCEDURES Preliminary Review

32 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 PROCEDURES Plan the Discharge Meeting  Prepare brief, truthful explanation  Arrange for retrieval of employer property  Arrange for removal of belongings  Secure the electronic systems  Consider security issues

33 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 PROCEDURES Plan the Discharge Meeting  Where?  When?  Anticipate predictable questions  Prepare brief, truthful responses  Review separation benefits  Prepare an outline

34 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 PROCEDURES The Discharge Meeting  Introductory remarks  Convey the decision  Plan for exit

35 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 PROCEDURES The Discharge Meeting  Avoid blaming or accusing the employee  Anticipate surprise or resentment  Give the employee dignity

36 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 PROCEDURES Communicating with Other Employees Focus on forward transition of duties Be truthful, but limit what you say Avoid defamation

37 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 PAPERWORK Review existing paperwork Supplement with additional paperwork Consider effect of “other” paperwork

38 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 BE CAREFUL AFTER EMPLOYMENT ENDS Exit interviews Reference checks Unemployment claims Other legal claims

39 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® www.laborlawyers.com ● Phone (503) 242-4262 Clarence Belnavis Fisher & Phillips, LLP 111 SW Fifth Avenue, Suite 1250 Portland, Oregon 97204 Direct: 503-205-8045 cbelnavis@laborlawyers.com FINAL QUESTIONS

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