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Walmart Employment Application document sample

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									  How to Legally
Terminate without a
Marcus C. Saldana
Human Resources

  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.
 • Plaintiff sues for wrongful termination when the
   store fired her for filing a worker’s compensation
 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
• 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
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
  • how was the standard communicated to the employee
Eight Steps to a Smooth
     1.   Follow progressive discipline policy closely:
          Lawyers, government agencies will look at the
          - 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
          - 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

     4.   Analyze the risk for legal claims; consider the
          - Discrimination: was employee treated fairly
          - 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
      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 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.

Notice to suspend must have prior approval of the Head Start
Director. Suspensions may be with pay at the discretion of

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.

Employee Name: ________________________________ Date Presented: _________


Employee SS#:_______/______/___________

Type of Disciplinary action:   __Conference* __Written Reprimand*
                               __Probation*                __Suspension * (length)
___ 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:______________________________________________



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
      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
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
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

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”

8.   Limit discussion of the termination. Have letter ready.


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

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.

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

   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

   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

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:


-12 week of job protection
- Employer may request medical certification
- FMLA can include Workers’ Comp


- Prevention to decreasing liability
                    HEAD START of Greater Dallas, Inc.
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:____________________


Start date:_________________________ Expected return date:________________

*Worker’s Compensation

Start date:_________________________ Expected return date:________________

(Doctor slip is required)

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
 •   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.

-   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

Personnel Services, Inc.

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