Up to and Including Termination of Employment.

"...UP TO AND INCLUDING TERMINATION OF EMPLOYMENT"

The Cornerstones of Disciplinary Action and Termination of Employment

PRESENTED BY

Robert P. Russell, SPHR Lic: PI-25638

Kimberley Worley, Esq.

? 2015 TPO The HR Experts - The Saqui Law Group

All Rights Reserved

PROGRAM OVERVIEW

"...UP TO and INCLUDING TERMINATION of EMPLOYMENT"

? Resolution of Conflicts (Hint...Make Good Hiring Decisions!) ? Employee Handbook Considerations ? Drafting Do's & Don'ts ? Progressive Discipline ? Just What Does that Mean? ? Employment at Will ? How to Protect It ? Arbitration Agreements ? Uses and Enforceability ? The Decision to Terminate ? Do's & Don'ts ? Separation Agreements ? When, Why & How ? The Termination Process ? The How-To's: A Checklist ? Final Pay Requirements ? Get this Right! ? Questions & Answers

THE CORNERSTONES OF DISCIPLINARY ACTION & TERMINATION OF EMPLOYMENT

? 2015 TPO The HR Experts - The Saqui Law Group

All Rights Reserved

Hire the Right Fit!

ABILITIES

Can they do the job based on past education and experience?

INTERESTS

Are they motivated to do the job well and committed to stay with the organization?

MANAGEABILITY

Will they accept direction, manage stress, and get along with others?

? 2015 TPO The HR Experts - The Saqui Law Group

All Rights Reserved

? 2015 TPO The HR Experts

All Rights Reserved

1

Resolution of Conflicts

Seek FIRST to UNDERSTAND ... THEN be UNDERSTOOD!

1. Set Clear EXPECTATIONS 2. Provide Regular FEEDBACK 3. Actively LISTEN 4. Press the PAUSE Button 5. DECIDE on Action (if any) 6. FOLLOW-UP (+ and -) 7. Document

ALIGN ? ENGAGE ? EXECUTE!

? 2015 TPO The HR Experts - The Saqui Law Group

All Rights Reserved

Employee Handbook Considerations

Properly drafted and implemented, Employee Handbooks play a critical role in communicating essential information about:

Benefits Policies and Performance Standards

to all employees.

PRIMARY HANDBOOK COMPONENTS

At-Will Employment Discrimination & Harassment Basic Wage & Hour Laws Breaks, Meals, Overtime, Timekeeping Leaves of Absence Privacy Issues Drugs & Alcohol at Work Workplace Violence Acknowledgement

KEEP IT CURRENT with REGS & YOUR PRACTICES!

? 2015 TPO The HR Experts - The Saqui Law Group

All Rights Reserved

Progressive Discipline...

Just What Does That Mean?

A process or method that attempts to address and correct an employee's work performance or inappropriate workplace behavior by providing clear and constructive feedback through a series of increasingly formal steps.

IS IT:

CONDUCT PERFORMANCE, or BOTH?

It Matters!

Based on a thorough review, measured and appropriate corrective response options may include:

Plan For IMPROVEMENT Verbal or Written COUNSELING Written DISCIPLINE Disciplinary PROBATION DEMOTION SUSPENSION CONDITIONAL EMPLOYMENT AGREEMENT TERMINATION

? 2015 TPO The HR Experts - The Saqui Law Group

All Rights Reserved

? 2015 TPO The HR Experts

All Rights Reserved

2

Employment at Will

How to Protect it

Employment is presumed to be 'at will'; that is, the employer is free to discharge individuals 'for good cause, or bad cause, or no cause at all,' and the employee is equally free to quit, strike, or otherwise cease work.

HOW TO PROTECT IT?

? APPLICATION FOR EMPLOYMENT

? EMPLOYMENT AGREEMENTS

? EMPLOYEE HANDBOOK

? HANDBOOK ACKNOWLEDGEMENT

? INTRODUCTORY PERIODS

? DISCIPLINARY ACTION

? DOCUMENTATION

EXCEPTIONS:

Contracts/Good Faith & Fair Dealing/Public Policy/DISCRIMINATION!

? 2015 TPO The HR Experts - The Saqui Law Group

All Rights Reserved

Arbitration Agreements

Use and Enforceability

? What is an Arbitration Agreement?

? Requires employees, as a term of their employment, to waive their right to a jury trial and or participation in a class action or collective claims (if a valid class action waiver is found) and have their employment related disputes heard by an arbitrator.

? Typically conducted by a retired Judge and has a more relaxed setting than a court room.

? In our opinion, it is best to have an arbitration agreement that requires the arbitrator to follow the law of the land.

? Depending on the language of the arbitration agreement the arbitrator can use his/her own rules.

? 2015 TPO The HR Experts - The Saqui Law Group

All Rights Reserved

Arbitration Agreements

? Why Arbitration?

? An arbitrator is typically an experienced expert in employment law and can render an impartial verdict whereas a jury can rely on emotion and misperceptions of the law.

? While the Employer must foot the bill for the costs of the arbitration fees, arbitrator's findings are often in favor of the employer.

? 2015 TPO The HR Experts - The Saqui Law Group

All Rights Reserved

? 2015 TPO The HR Experts

All Rights Reserved

3

Arbitration Agreements

? How to Use and Enforce Your Arbitration Agreement?

? Implement a valid stand-alone agreement that has been tested in the courts

? Thoroughly explain the agreement and be able to prove that you explained the agreement.

? Employers should also be prepared to litigate with respect to the enforceability of the arbitration agreement. A plaintiffs' attorney will stop at nothing to invalidate the agreement.

? 2015 TPO The HR Experts - The Saqui Law Group

All Rights Reserved

The Decision to Terminate

Do's & Don'ts

? Accelerating the Resignation ? Involuntary Termination ? Documentation ? Job Abandonment ? Failure to Return from Leave ? Authority ? Suspend Pending Review

? 2015 TPO The HR Experts - The Saqui Law Group

All Rights Reserved

The Decision to Terminate

Do's & Don'ts

A PRE-TERMINATION CHECK-LIST

First and foremost, is it fair? Is termination appropriate for the situation? Have the employer's policies been followed leading up to the termination? Does the employee have a valid, overriding explanation? Have we been consistent in disciplining other employees for similar violations or

performance problems? If there are inconsistencies, what valid reason(s) exist to deviate from established practice(s) in this instance?

Have we documented all of the facts since first learning of the conduct or performance problem?

? 2015 TPO The HR Experts - The Saqui Law Group

All Rights Reserved

? 2015 TPO The HR Experts

All Rights Reserved

4

The Decision to Terminate

Do's & Don'ts

A PRE-TERMINATION CHECK-LIST - Continued

Will this termination violate any public policy? Are the employee's evaluations consistent with this action? How long has the operation tolerated the conduct or performance problem? Have other members of management been involved in making this determination? Would co-workers perceive the decision to terminate fair or unfair? Is the employee in a category that is protected under anti-discrimination laws? Could the employee claim any type of harassment or discrimination? What is the employee's length of service? Is this corrective action consistent with that taken against other employees?

? 2015 TPO The HR Experts - The Saqui Law Group

All Rights Reserved

The Decision to Terminate

Do's & Don'ts

A PRE-TERMINATION CHECK-LIST - Continued

Has the employee been told that termination may result if the conduct or performance continued? (Will it be a surprise?)

Are there other appropriate alternatives to termination, such as transfer, counseling, discipline, probation, suspension, or demotion?

Are there any health-related or any type of drug or alcohol-related problems? Are there any known or suspected disabilities or reasonable accommodation

issues? Are there any pending or unresolved Worker's Compensation issues? Could the employee perceive the action as retaliation?

? 2015 TPO The HR Experts - The Saqui Law Group

All Rights Reserved

Separation Agreements

When, Why, How

AGREEMENT FOR SEVERANCE AND GENERAL RELEASE OF ALL CLAIMS

This Severance and Release Agreement (the "Agreement") is made and entered into between EMPLOYER NAME (The "Company", or "Employer"), and EMPLOYEE NAME ("Employee") (collectively referred to as the "Parties").

When to Use Why to Use How to Use

? 2015 TPO The HR Experts - The Saqui Law Group

All Rights Reserved

? 2015 TPO The HR Experts

All Rights Reserved

5

 ................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download