1. Discipline and Terminations: Wrongful Discharge Act, Just Cause, Discipline Basics, and Other Items for Employers for Employers Michele Puiggari Midwinter 2015

2. Failure = Expense ($ and time) 2

3. Types of Legal Actions Related to Termination Discrimination Montana Human Rights Act Sex, age, race, physical or mental condition, creed, nationality, religion Wrongful Discharge Violated WDA Terminated without good cause, against public policy, or in violation of handbook If public employer—terminated without just cause Unemployment Insurance MT 39-51-et. seq. 3

4. Wrongful Discharge Act §39-2-904. Elements of wrongful discharge - presumptive probationary period (1) A discharge is wrongful only if: (a) it was in retaliation for the employee's refusal to violate public policy or for reporting a violation of public policy; (b) the discharge was not for good cause and the employee had completed the employer's probationary period of employment; or (c) the employer violated the express provisions of its own written personnel policy. (2) (a) During a probationary period of employment, the employment may be terminated at the will of either the employer or the employee on notice to the other for any reason or for no reason. (b) If an employer does not establish a specific probationary period or provide that there is no probationary period prior to or at the time of hire, there is a probationary period of 6 months from the date of hire. 4

5. Wrongful Discharge Act ONLY TWO TYPES OF DISCHARGE: a constructive discharge Any situation where employer severs relationship ( including resignation, elimination of the job, layoff for lack of work, failure to recall or rehire, and any other cutback in the number of employees for a legitimate business reason) “Good cause" means reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employer's operation, or other legitimate business reason. Can only use WDA defenses if send grievance policy within 7 days Defenses: limits damages to 4 years’ wages 5

6. When to Discipline Any time employee violates rules, procedures YOU ARE THE SUPERVISOR. EMPLOYEE IS NOT YOUR FRIEND. NO one ever feels discipline is constructive: be professional and stick to the facts Don’t let employees skate—if you don’t discipline, then behavior becomes acceptable. The longer you let it happen, the harder it is to correct. DOCUMENT THE FILE EVERY TIME!!! 6

7. Discipline Written Put in facts, not opinions Shorter is better Have employee sign (witness if needed) E-mail Way to recap verbals Way to record without seeming to Use statement that ‘if you don’t agree, let me know’ Quiet place – uninterrupted This is not a discussion/argument: don’t engage 7

8. What Discipline Should Include ALWAYS FOCUS ON EMPLOYEE’S PERFORMANCE What the employee did that was wrong Facts, not opinion What rule/policy was violated Can be verbal if you don’t have written policy Can be behavioral (they are the gossip and create bad feelings among employees. OK to have policy that all employees must respect each other and not cause friction—be sure to document bad behavior) What discipline you intend What behavior you expect for improvement/good performance The time frame expected for improvement Can be immediate improvement for the duration of employment 8

9. Probationary Period Why is this important? At Will (no just cause) Documentation needed after period Document during probationary period Don’t pass probationary period unless you’re sure 9

10. Public Employees Public Sector Employees have Property Interest in the Job Like having a house To Suspend/Terminate an Employee you MUST show Employer had Just Cause Must have under CBA 10

11. Just Cause Definition: Is the Proposed Disciplinary Action Firmly and Fairly Grounded? How to Establish Use 7-Step process to analyze whether discipline is for Just Cause These 7 Steps are a practical and effective way to determine whether a proposed disciplinary action is firmly and fairly grounded 11

12. 7 Steps Notice Reasonable Rules & Orders Investigation Fair Investigation Proof Equal Treatment Penalty 12

13. Questions before you terminate 1.Is employee covered by CBA 2.Is there a policy covers issue 3.Is there a past practice for handling this issue 4.Has the employee been told of this in past and given chance to fix it 1.Most of time look at this BUT not always 2.Is it documented 5.Has the employee recently engaged in protected activity (mentioned or indicated any issue related to discrimination) 1.Have they stated pregnant 2.Requested FMLA or accommodation 3.Filed discrimination complaint in last 6 months 13

14. More questions 6.Will the employee be surprised 7.Is there documentation to support-shows objective basis for termination consider possibility discrimination based on protected class played role in decision 8.Has employee been provided Due Process 9.Does anything not feel right 10.Have you consulted with MACo 14

15. Forms Discipline Form Verbal documented Written Performance Improvement plan or Corrective Action Plan Due Process Suspension Termination Either: Can attach discipline ON MACo website http://www.mtcounties.org/risk-sharing/personnel-services If law enforcement Garrity warning 15