Bullet Proof Documentation - Disciplinary Process – Sometimes You Have to Terminate – Part II

You’ve followed you disciplinary process and you’ve documented your efforts. The employee is still falling short of expectations. Termination of employment is your next reasonable step.

Before you terminate, consider the following:

1. Determine if the employee is in one or more protected classes.
2. Determine the exact basis for the termination. Don’t make it easy on yourself by sugar coating it or think that you can embellish or give the real reason(s) later if the employee files for unemployment benefits or a regulatory charge. You are stuck with whatever you gave as the “reason”. If you later change the reason, it will probably be determined to have discriminated against the employee on whatever basis they alleged.
3. Review the facts and documentation to ensure all your bases are covered. (See part 1, Bullet Proof Documentation).
4. Consult with your HR professional or employment attorney to ensure legality and defensibility of this employment action.

The Termination Meeting:
1. Select the proper setting.
2. Treat the person with respect.
3. Have at least 2 people present, be prepared if you suspect the person may become violent.
4. State the specific reason(s) for the termination.
5. Do not argue or apologize regarding the decision to terminate. Its okay to hear the employee’s side, but do not let it escalate. Additionally, stating that you are sorry you have to terminate implies that the decision was a mistake.
6. Discuss the employee’s final paycheck and severance pay if applicable.
7. Discuss vacation, sick leave or other benefits including COBRA or State Continuation.
8. Have the IT department remove the employee’s access to the computer system while the meeting is in progress.
9. Collect company property.
10. End the meeting.

An employee termination should never be a surprise. A progressive discipline process and an effective appraisal system should have been followed up to this point.

Do not tape record the meeting or allow the employee to record. However, always be mindful that the employee may have a hidden tape recorder and record without your knowledge. Ensure your statements and conduct are always defensible, always assume you are being recorded. If you wouldn’t want your words or actions described in exhibit A in a court room, don’t do it or say it.

The Whitford Group can assist you with any employee relations issue as well as all other employment law related compliance.

Please call or e-mail for your free, no obligation Risk Analysis to determine where you may be out of compliance. Call 704 905-7749 or e-mail TheWhitfordGroup@aol.com

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Bullet Proof Documentation - Part I

The Disciplinary Process & Bullet Proof Documentation Checklist - Part I

1. Identify the problem specifically. Is it poor performance or misconduct?
2. Review your employee handbook for specific policies and procedures; ensure they are sited.
3. Is a progressive discipline process in place? Is it adhered to consistently?
4. Review any documentation you have on file.
a. Has the employee been written-up for similar issues?
b. Did the supervisor discuss this/these issues with the employee?
c. Did the employee have a reasonable expectation that their job was in jeopardy?
5. Review job description, especially if poor performance is the basis for the discipline. Site the issues specifically in your write-up.
6. Review your past practice. In lieu of written policies, your past practice is your policy. Additionally, even if you have written policies and they have not been adhered to consistently, your past practice still prevails.
7. Investigate thoroughly and document your findings without making bias statements of conclusion during this phase. Summarize your conclusions of misconduct once the investigation is complete and the appropriate corrective action has been decided.
a. Include observable performance or behavior.
b. Document which rule or rules have been broken.
c. Don’t state “bad attitude”, it is indefensible in with regulatory agencies and in court. Again, stick to observable behavior.
d. Make it very clear “what” you are disciplining.
8. Discuss the issues with the employee. Ensure they understand what performance or misconduct standards have been violated. Always, always have a witness. Ideally it should be human resources or another member of management.
9. Develop a performance improvement plan, collaboratively if possible. An employee’s buy in is very important.
10. Set measurable, achievable goal and objectives. Be specific.
11. Determine if additional training, supplies, equipment, etc. are needed in order for the employee to comply with goals and objectives. Make them available.
12. Establish a follow-up procedure. Don’t forget! You run the risk of the employee believing the issue wasn’t that important in the first place and you weaken your defensible position should a regulatory inquiry or lawsuit develop.

Stay tuned for Part II of Bullet Proof Documentation premiering on a blog near you.

For assistance in developing effective policies, procedures, HR best practices, employee relations solutions and 3rd party investigation contact The Whitford Group at www.TheWhitfordGroup.com

You may also request a free, no obligation risk analysis through the website or by emailing to TheWhitfordGroup@aol.com

SC Illegal Immigration Reform Act - Major Change

New!! South Carolina Illegal Immigration Reform Act

Illegal Aliens and Private Employment Law Now in Effect for Employers Who Employ 100 or More Workers effective July 1, 2009, South Carolina businesses that employ 100 or more workers must verify the legal status of new employees and remove from their payrolls any worker who is not legally in the United States and authorized to work . The requirements are a part of the South Carolina Illegal Immigration Reform Act that became effective on June 2, 2008.

Beginning July 1, 2009, all businesses in South Carolina are imputed a South Carolina employment license which permits an employer to hire employees. The imputed employment license remains in effect as long as the business abides by the law.

Employers who employ less than 100 workers have until July 1, 2010 to fully comply with the law.
The South Carolina Department of Labor, Licensing and Regulation will investigate complaints and conduct audits of employers to assure compliance with the law. Complaints must be signed and in writing. Complaints against employers who employ less than 100 workers can not be accepted until July 1, 2010. Click here to access a complaint form (pdf).
Verification Requirements

In addition to completing and maintaining the federal employment eligibility verification form, more commonly known as the Form I-9, all South Carolina employers must within five days after employing a new employee:

1. Verify the employee’s work authorization through the E-Verify federal work authorization program administered by the U.S. Department of Homeland Security; or
2. Verify that the employee possesses a valid South Carolina driver’s license or identification card issued by the South Carolina Department of Motor Vehicles; is eligible to obtain a South Carolina driver’s license or identification card; or possesses a valid driver’s license or identification card from another state whose qualification requirements are as strict as those of the state of South Carolina.

The South Carolina Department of Motor Vehicles has determined that drivers’ licenses or identification cards issued by the following states are acceptable: AK, AZ, CT, FL, GA, ID, IN, ME (credentials issued after 11/15/08), MA, MI, NH, NJ, PA, RI, TX and VA. This list may be updated periodically. For the most current list, visit the DMV web site at: www.scdmvonline.com.
For information on E-Verify, and to register for the program, go to the E-Verify web site.

Compliance Dates
Compliance with verification requirements begins July 1, 2009 for private employers who employ 100 or more employees. For private employers who employ less than 100 employees, the compliance date is July 1, 2010.

Penalties
The South Carolina Department of Labor, Licensing and Regulation must: (1) notify the United States Immigration and Customs Enforcement of suspected unauthorized aliens employed by a private employer; (2) notify state and local law enforcement agencies responsible for enforcing state immigration laws, and; (3) assess penalties for violations of the Act. For violations of the procedures for verifying worker eligibility, a private employer can be assessed a civil penalty of not less than $100 and not more than $1,000 for each violation. Upon the first violation, the employer can avoid assessment of a penalty if within 72 hours of notification of a violation the employer complies with the verification provisions. An employer who knowingly or intentionally hires an unauthorized alien faces suspension or revocation of the employer’s imputed license. During the time that the license is suspended or revoked, the employer cannot employ any employees.

Source: SC Department of Labor, Licensing and Regulation

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Employers Face Greater Liability for Workplace Identify Theft

It is estimated that more than 50% of all identity theft occurs in the workplace. Employers can be held liable for all types of identity theft that can be traced back to the mishandling of personally identifying information maintained on employees, applicants, clients and vendors. The FTC Red Flags Rules were established to ensure that information security is a priority for every business in America.

There are multiple types of ID theft; here are a few that can occur in the workplace:

1. Driver’s License – A thief can get a license in your name and represent them selves as you during a traffic stop. If you are later involved in a traffic stop and the thief has committed traffic violations or other crimes in your name, you could be arrested on the spot.

2. Social Security – Some one could get a job in your name, not pay taxes or receive your income tax refund. The IRS and the Social Security Administration rarely talk to one another.

3. Medical ID theft – This is the fastest growing type of ID theft. Criminals obtain you health insurance info or social security number and receive health care under your name. Your medical history could contain medical information belonging to another, resulting in life threatening mistakes.

Identity theft is the fastest growing crime in the U.S. and around the world. Above are only a few types of theft. What can you do?

Under the FTC Red Flags Rules you are required to:

Develop a written data protection plan.
Develop a notification plan in the event of a breach.
Appoint a privacy officer.
Provide training for employees who have access.
Consider offering identity theft protection as an employee benefit.

For FTC Red Flags Rules or employment law compliance assistance, please feel free to contact The Whitford Group for a free risk analysis. Find out what you should be doing to protect your company from unnecessary financial loss.

TheWhitfordGroup@aol.com www.TheWhitfordGroup.com

Sexual Orientation Discrimation

Sexual orientation discrimination—there's no federal law forbidding it, yet "any lawyer with a pulse" can get a claim to go forward in federal court.

If sexual orientation—and gender identity and gender expression—are not on the list of protected characteristics (race, color, religion, sex, national origin, disability, or age), how do such cases make it to trial? It's because claims say the discrimination was "because of sex".

Just because there is no federal law prohibiting a particular activity doesn't mean a company has no liability regarding the activities of their supervisors and employees.

Go to www.TheWhitfordGroup.com to request your free, no obligation risk analysis. Know where you stand on this and other major issues.

PRO-Union Legislation - What It Will Mean to You

Proposed legislation expected to become law. The Employee Free Choice Act would fundamentally alter the National Labor Relations Act in ways that will shift the current balance of power between unions and management significantly in favor of unions, resulting in greater numbers of successful union campaigns.

The Re-Empowerment of Skilled and Professional Employees and Construction Trades workers (RESPECT Act) is another pro union law expected to pass. The proposed bill would benefit unions and make organizing efforts easier. This law would expand the pool of potential members in each workplace by limiting an employer’s ability to classify certain positions as supervisory or management positions.

The Patriot Employers Act is a proposed law that is pro union. It provides tax incentives to U.S. based employers who create jobs in the United States rather than abroad. However, for an employer to qualify as a “Patriot Employer” they must remain “neutral” during a union organizing campaign and thus unable to campaign against the union. The employer must also pay 60% of the co-pay for its employees’ health care and other requirements. This Act will also impact additional salary, insurance and benefits criteria.

Public Safety Employer-Employee Cooperation Act of 2009 proposes to grant union organizing and collective bargaining rights to all “public safety officers” The Act includes law enforcement officers, firefighters, emergency medical personnel and other similar employees.

In the Southeastern U.S., we have very few unions. Expect to be targeted if any of this legislation is passed. If you need help with Union Avoidance training for your supervisors, please conatact me at TheWhitfordGroup@aol.com or visit my website at http://www.thewhitfordgroup.com/ and request a free risk analyisis that will provide you with valuable information you need to know to help protect your company from unnecessary financial loss.

FTC Red Flags Rules - Not Just Financial Institutions

In addition to straight forward employment law changes, the FTC Red Flags Rules apply to more companies and industries than originally thought. The Rules provide for the identification, detection, and response to patterns, practices or specific activities – known as “red flags” – that could indicate identity theft. The Rules apply to financial institutions and creditors with covered accounts. The definition of “creditor” is where most of the confusion lies when determining if the Rules apply to s specific business. Basically, if an individual’s or group of individual’s identify is stolen because a company failed to protect personally identifiable information they collected on clients, vendors, employees or applicants, under the Rules the company is liable if they have not complied with the many steps set forth in the Rules.