How to Legally Terminate without a Lawsuit Marcus C. Saldana Human Resources Director HEAD START of Greater Dallas, Inc. Dallas, Texas Litigation Case Attorney hourly rate of $275.00 to $475.00 per hour Walmart is sued 2 to 5 times each day somewhere in the U.S.A.; discrimination to workers compensation, slips and falls. Wheel chair bound job applicants sues Walmart for ADA violation – 3,583,399. New Mexico suit by EEOC • Plaintiff was in a wheelchair his application was rejected six times. The personnel manager informed him that “no openings for a person in a wheelchair”, on his last attempt he was informed the store “already had one of his friends in the garden center”. Alaska man subject to racial harassment while employed at a McDonald’s inside Walmart $58,000 • Signaled out for frequent intrusive searches of his personal carry bag and person. Employee Discharged after filing worker’s compensation claim - $630,000 Texas award Cruz vs. Walmart • Plaintiff sues for wrongful termination when the store fired her for filing a worker’s compensation claim. Effective Termination Termination can be stressful for everyone involved , including the person doing the termination. Goals for a termination: Two goals to have in mind a. The sending of a positive message as possible as well as to the rest of the workforce b. The protection of the organization from a lawsuit, EEOC Both Goals Attainable: • Termination is never pleasant – handle it with kids glove • Do not be rude or insulting • Stick to facts give employee time to ask questions • Don’t argue with employee or allow supervisor to give input KEYS TO AN EFFECTIVE TERMINATION Document; Document; Document - Key to documentation is accuracy - Not every detail needs to be included - Describe the conduct not the incident - Describe the objectionable conduct and not the incident - Avoid generalized titles: insubordination and bad attitude - Be specific on the behavior - Common mistakes in documentation: • failure to document until the last incident • use nouns and verbs - Use absolute expression unless completely accurate - Failure to review past documentation: • always review past performances, disciplinary actions, etc. • always review previous notices from a previous supervisor - Unsupported reference to standards • identify the particular standard reference to in the disciplinary notice • how was the standard communicated to the employee Eight Steps to a Smooth Termination 1. Follow progressive discipline policy closely: Lawyers, government agencies will look at the following: - Performance problem did you give the employee an opportunity to improve - Violation of a work rule, was it based on appropriate discipline on your policies and past practices. - Severity of the employee’s action. If you did not follow your policies as written, do you have business related reasons to justify your decision. 2. Treat employees’ as consistently as possible: - Courts will look to see if you treated similar situation/employees in a similar manner (employees with similar jobs, performance history length of employment 3. Investigate thoroughly before terminating in cases of misconduct. Investigation should provide the reason and that you followed your personnel handbook. 4. Analyze the risk for legal claims; consider the following: - Discrimination: was employee treated fairly consistently - Member of a protected class i.e. female, disable, minority, over 40, etc. - Wrongful discharge: policies were not consistently applied - Violations of FMLA: was employee terminated while on leave - ADA: failure to accommodate - Wage and hour, overtime wages not properly paid. Disciplinary Policy Verbal Conference Documents a verbal conference between the employee and supervisor. The written Performance Correction Notice and a Plan of Action must be submitted to the Human Resources Department for documentation and placed in the employee’s personnel folder. Written Reprimand The written Performance Correction Notice and Plan of Action document will be placed in the Employee's Personnel Folder. Probation Probation must have prior approval of the Associate Head Start Director. The written Performance Correction Notice and Plan of Action document will be placed in Employee's Personnel Folder. Suspension Notice to suspend must have prior approval of the Head Start Director. Suspensions may be with pay at the discretion of management. Termination Notice to terminate, with prior approval of the Head Start Director, must be submitted to the Employee in writing by the Human Resources Department. Such notice will include such specific and individual reasons for said action and must further advise the Employee as to his or her right of appeal in accordance with the Agency's personnel policies. Should the Employee elect to appeal, the appeal should deal only with the charges as outlined in the disciplinary action. The effective date of termination will remain in effect regardless of the hearing date established by the Chief Executive Officer. If the appeal is found in favor of the Employee, the Employee will be reinstated with back pay and continuation of all fringe benefits. The decision of the Chief Executive Officer is final, subject only to Policy Council approval in accordance with Section 2.B above. Head Start of Greater Dallas, Inc. PERFORMANCE CORRECTION NOTICE Employee Name: ________________________________ Date Presented: _________ Center/Dept:________________________Supervisor:__________________________ Employee SS#:_______/______/___________ Type of Disciplinary action: __Conference* __Written Reprimand* __Probation* __Suspension * (length) __Termination Subject: ________________________________________________________________________ ___ Policy/Procedure Violation ___ Behavior/Conduct Infraction ___ Performance Transgression ___ Absenteeism/Tardiness ________________________________________________________________________ Prior Notifications___________________ Level of Discipline Date Subject Conference ______ ________ ____________________________________ Reprimand ______ ________ ____________________________________ Probation _______ ________ ____________________________________ Suspension ______ ________ ____________________________________ Incident Description and Supporting Details: Include the following information: Time, Place, Date of Occurrence, and Persons Present. ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ Corrective Action Plan 1. Measurable/Tangible Improvement Goals:_____________________________ ________________________________________________________________________ 2. Training or Special Direction Provided: _______________________________ ________________________________________________________________________ 3. Interim Performance Evaluation Necessary? [ ] Yes [ ] No If yes, please explain______________________________________________________ *A Plan of Action must be submitted with each disciplinary action. 4. In addition, I recognize that you may have certain ideas to improve your performance. Therefore, I encourage you to provide your own Personal Improvement Plan Input and Suggestions: _________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ _________________________________________________________________________ (Attach additional sheets if needed.) Outcomes and Consequences:______________________________________________ ________________________________________________________________________ Positive:___________________________________________________________________ _________________________________________________________________________ _________________________________________________________________________ Negative:_________________________________________________________________ _________________________________________________________________________ Schedule Review Date: _______________________________________________________ Employee Comments and/or Rebuttal _________________________________________________________________________ _________________________________________________________________________ _________________________________________________________________________ _________________________________________________________________________ _________________________________________________________________________ _________________________________________________________________________ ________________________________________________ (Attach additional sheets if needed.) ___________________________________________ ________________ Employee Signature Date _________________________________ ______________ Name (Witness, if employee refuses to sign) Date/Time ________________________________ ______________ Manager/ Supervisor Date _________________________________ ______________ Department Head Date ________________________________ ______________ Human Resources Director Date __________________________________ _______________ CEO/Head Start Administration Director Date Grievance & Appeals Procedures Appeal Procedure This step in the appeal procedure must be Step 1 submitted, in writing, by the Employee or person Appeal to Chief appealing the action, within Executive Director five working days of the date of the action. The Employee must submit a copy of the appeal to the Human Resources Director, with a copy to the Chief Executive Officer and Head Start Director. The Human Resources Director will notify the supervisor. The effective date of termination will remain intact regardless of the hearing date established by the Chief Executive Officer. The decision of the Chief Executive Officer is final, subject only to Policy Council approval in the case of a termination. Grievance Procedures Step 1 Grievances may only be filed as a result of a written disciplinary action and other adverse actions Grievant to not related to suspension or Immediate termination. Supervisor Each step in the grievance procedure must be submitted, in Step 2 writing, by the Employee or person appealing the action, within five Grievant to working days of the date of the action. Associate Head The Employee must submit a copy Start Director of the grievance to the Human Resources Director and to the Step 3 supervisor who implemented the action, as well as to the Head Grievant to Head Start Director. Start Director If the grievance is found in favor of the Employee, all documents relevant to the grievance will be destroyed. If the grievance is found in favor of management, all documents will be filed in the Employee’s Personnel folder to remain for a period of two years. Eight Steps to a Smooth Termination CONTINUED 5. Personnel file should reflect the reason for termination such as performance appraisals, which should reflect problems, counseling memos, etc. 6. Plan the termination - Timing is every thing; should take place - Termination should be private - Who attend? Supervisor and Human Resources representative or Department Head to act as a witness. - Have paperwork ready: Cobra, health insurance, correction notice and final pay check if possible. 7. Facts: explain to employee the factual reason(s) for the termination. Don’t try to “soften the blow” i.e. “I did not want to terminate but my supervisor said to do it”. Don’t rely on “at will” relationship. 8. Limit discussion of the termination. Have letter ready. Date Dear: This is formal notification that your employment with Head Start of Greater Dallas, Inc. is being recommended for termination pending approval of the Policy Council. The reason is for violation of the following minimum standards 746.1201(1), 74602801(3).and 746.2805(6). You violated all the above standards when you instructed a child to put sand on the head of another child as a form of disciple (see attachment). In addition you also violated the Workplace violence policy when you followed the Family Advocate into her office and begin yelling at her. When the family Advocate walked away you should have brought the matter to your supervisor instead of following her into her office. Based on there two incidents we have recommended your termination. Your current employment status will continue as “Suspension without Pay” effective immediately, in accordance with Section 2.b.b of the employee handbook. This suspension is in effect until such time that the Policy Council can give consideration to the recommendation for termination at the next Policy Council meeting. You will be notified as to the decision of the Policy Council after their consideration has been made. You have the right to appeal this action directly to the Chief Executive Officer, as outlined in your Personnel Handbook. If you wish to appeal, it must be submitted in writing to me within five working days of the date of this letter. Please sign below indicating that you have received a copy of this letter. Sincerely, Site Manager _______________________ __________________________ Employee Name Date Termination Checklist All normal steps of progressive discipline have been completed, and there is no realistic hope for improvement. The employee had been repeatedly counseled and assisted regarding performance deficiencies, but there is no realistic hope for improvement. All alternatives such as transfer and retraining have been considered. All steps have been fully documented and records included with the recommendation for discharge. The recommendation for discharge and all supporting documents have been submitted to Human Resources. Discharge has been authorized by a signed statement by the Human Resources Director. The employee has been given written notice of his/her termination. Payroll has been notified of the termination. All necessary security items and other company property have been obtained form the employee The employee has been referred to Human Resources for further processing. All records of this case are forwarded to Human Resources. Exit Interviews All employees who resign or are terminated should have an exit interview. Must be properly documented. Employees who fail to raise employers misconduct as an issue during an exit interview, ADA or other claim raised later may loose credibility. Exit Interview Name: ____________________Hire Date: ___________ Position: __________________ Termination Date: ______ Manager: _________________ Center: ______________ 1. What made you decide to leave your current job? 2. What did you like most about your job? 3. What did you like least about your job? 4. Do you feel training opportunities were made available to you? 5. Do you think your supervisor was fair and reasonable? If not, explain? 6. Do you believe you were given access to and realistic consideration for promotional opportunities within the agency? If not, explain? 7. Do you feel you were properly trained for the job you were performing? 8. Did you have the appropriate equipment and resources to perform your job? 9. Was the job realistically presented to you when you were hired or most recently changed positions? 10. Were you satisfied with the employee benefits that were provided? 11. Was your salary satisfactory for the job you were performing? 12. Are there any changes that the agency could have made to prevent you from leaving? 13. Do you feel that during the orientation you received adequate training? (Policy, Procedures, and Benefits explanation) Other Areas of Concern: FMLA -12 week of job protection - Employer may request medical certification - FMLA can include Workers’ Comp ADA - Prevention to decreasing liability HEAD START of Greater Dallas, Inc. REQUEST FOR FAMILY OR MEDICAL LEAVE Name_________________________ Date_____________________ Dept./Center____________________Job Title__________________ Employee#_____________________Hire Date_________________ Request for family or medical leave must be made at least 30 days prior to the date requested leave is to begin. I request the leave for the following reason: *Birth of child - time to care for the baby: Length of leave:_____________________ Start date:_________________________ Expected return date:________________ Expected date of birth:_______________ Actual date of birth:_________________ *Care for my spouse, child or parent: Length of leave:____________________ Start date:_________________________ Expected return date:________________ *Personal serious health condition: Length of leave:____________________ Describe:_____________________________________________________________ Start date:_________________________ Expected return date:________________ *Worker’s Compensation Start date:_________________________ Expected return date:________________ (Doctor slip is required) REQUEST FOR FAMILY OR MEDICAL LEAVE - PAGE 2 Have you taken a family leave in the past 12 months? Yes_____ No_______ If yes, how many work days?_____________ I understand and agree to the following conditions: 1) I have worked for Head Start of Greater Dallas for at least one year and have accumulated 1,250 hours in the rolling 12 months. 2) If I fail to return to work after the approved leave expires, and if the employer requires it, I will be financially responsible for the medical insurance premium the company paid while I was on leave. 3) If I fail to return within the 12 weeks of FMLA leave I understand my position may be staffed as required by agency’s needs. 4) During my family/medical leave, I may pay my portion of the insurance premium either on a biweekly or monthly basis. If I do pay my portion during my FMLA the agency will deduct all the unpaid insurance premium from my pay check. 5) After 12 weeks of leave, if I do not return to work within three days or contact the Human Resources Department on the date intended, it will be considered that I have abandoned my job. 6) I will be required to exhaust my paid annual leave and sick leave as part of my 12 weeks of leave. Employee Signature:______________________ Date:____________________ Supervisor/Manager:______________________ Date:____________________ H.R. Department:_________________________ Date:____________________ Sexual Harassment Sexual Harassment • Supreme Court has ruled that unwelcome sexual conduct creating a hostile and offensive work environment violates Title VIII of the Civil Rights Act. • To violate Title VIII the conduct must be sufficiently severe or pervasive to alter the condition of employment • Barber vs. John Morrel & Co. 382 F.3d (8th Cir 2004) • chronicled years of blatant sexual harassment • Worth vs. Tyler F.3d 249 (7th Cir 2001) • created hostile work environment by supervisor • Cenos vs. Steel Technologies, Inc. 288 F.3d 7th Cir. 2002) • no magic number for slurs to create Steps for prevention • Create and distribute formal policy • Have all employee trained and document training with employee signature for documentation . • Select a key person to oversee policy. • Train all supervisors and managers. • Conduct immediate investigations • Evaluate the investigation findings for decision to be made. • Take appropriate action: including plan of action • Communicate the results to the involved employees on a need to know basis. • Ensure that recommended disciplinary action is implemented to prevent any future occurrence. • Remembering you should take action even for offensive conduct that does not meet the legal standards. DEFAMATION - Elements of a Defamation Claim ◦ publication of a false statement ◦ to a third party ◦ the person about whom the statement was made damages as a result of the publication References Personnel Services, Inc. Employment Law News and Services
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