Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® ● Phone (404) 231-1400 Presented by:...

Fisher & Phillips LLPATTORNEYS AT LAW

Solutions at Work® www.laborlawyers.com ● Phone (404) 231-1400

Presented by:Clarence Belnavis

Phone: (503) 205-8045Email: [email protected]


Solutions at Work®

Performance Management-Effective Communication

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© 2010 Fisher & Phillips LLP

OCHIN Learning Forum, November 15-16, 2012



• Employment at-will• Statutory & common law exceptions• Juries view work-related cases differently

REFRESHER



• Screen for the “right” employee• Employee handbook• Orientation• Introductory period

IMPORTANT FOUNDATIONS



PURPOSE OF EVALUATIONS

• Provide an opportunity to observe performance• Express observations objectively• Evaluate employee potential• Identify need for training/guidance• Advise employee of strengths and weaknesses



BENEFITS OF EVALUATIONSTO EMPLOYER

• Assure consistent treatment of employees• Inventory employees’ skills and abilities• Provide objective support for discipline• Improve performance and efficiency



BENEFITS OF EVALUATIONS TO EMPLOYEES

• Satisfy need to know• Constructively raise awareness of

weaknesses• Prevent unrealistic self-evaluations and

expectations for the future• Provide for upward feedback



PITFALLS IN EVALUATING EMPLOYEES

• The “halo” effect• Letting one incident affect the whole evaluation• Being influenced by prior evaluations• Evaluation without a proper standard• Failure to cite critical incidents• Not allowing enough time



PLANNING THE EVALUATION INTERVIEW

• Have the employee do a self-evaluation• Outline the major points• Anticipate the employee’s reaction• Be prepared to support your evaluation• Be clear about what you want the

employee to do• Have a plan in mind for helping the

employee improve



GOAL

The employer’s primary goal

is to rehabilitate poor performers.



DISCIPLINARY WARNINGS

• Be objective.• Don’t hesitate to give them when warranted.• Check facts before putting them in writing.• Tell employee what will happen if the incident

happens again or if no improvement occurs, i.e., immediate discharge.



DOCUMENTING DISCIPLINE

• Every warning should end with:

“Repetition of this conduct, failure to follow any of our normal work rules or rules of conduct or to meet our standards of performance will result in further disciplinary action, up to and including immediate termination of your employment.”

• “Sustained and immediate improvement.”



You write to an employee: “You have a bad attitude and

are insubordinate.”

Can you document this problem better?

How?

SCENARIO



An employee’s work is not neat.You write him a memo that “your

work is sloppy.”


How?

Should you require the employee to sign the memo?

SCENARIO



An employee has attendance problems.

You write her a memo saying that “you’re habitually late and have poor

attendance.”

Can you document this problem better?How?What if the employee refuses to sign the disciplinary memo?

SCENARIO



An employee has problems dealing with your customers.

You write a memo saying “you’re getting too many

complaints from customers.”


How?

SCENARIO



You suspect an employee violated the drug & alcohol policy. You ask the employee to take a drug test. Before you can make arrangements to get him to the lab, he leaves work. A few hours later his wife calls and says he checked into rehab.

Can you discharge this employee?

For what? When? How?

SCENARIO



A white male employee under 40 is called for military service. You grant him a military leave. Ninety days later he returns. Four months later you suspect him of theft.

Does the employer have any special obligation to him or can you just fire him?

SCENARIO



• Discharge is necessary• Key elements should be present

BASIC PRINCIPLES



DISCHARGE IS NECESSARY

• Improves or maintains productivity by removing poor performers

• Gives employees a clear direction as to employer expectations

• Avoids morale problems due to failure to deal with poor performers



KEY ELEMENTS

• Consistent• Timely• Impartial• Progressive• Appropriate



TYPES OF DISCHARGE

• Rule violations

• Performance problem



RULE VIOLATIONS

HarassmentInjuries & AccidentsLeaving Early Misuse of PropertyPoor PerformanceSleeping or InattentionSolicitation or DistributionSubstance AbuseTardinessTheftUnlawful ActivityUnsafe Work Practices

Absenteeism Breach of ConfidenceCompany PremisesConflict of InterestDamage to PropertyDiscourtesy or DisrespectFighting or ThreatsWeaponsFraud or DishonestyGamblingGifts or GratuitiesSecurity violations



RULE VIOLATIONS

• Rule?• Notice of the rule?• Uniform enforcement of the rule?• Proper documentation available?• Surprise to employee?• Terminate with dignity.



• Performance standard?• Notice of the standard?• Uniform enforcement of the standard?• Proper documentation available?• Surprise to employee?• Terminate with dignity.

POOR PERFORMANCE



THE “CLEAN” RULE

Consider the facts

Learn the employee’s, manager’s and witnesses’ stories

Evaluate prior discipline for similar offenses

Analyze risk

Narrow potential options and decide



THE “NEAT” RULE

Notice

Explanation

Assistance

Time to Improve



3 P’S OF DISCIPLINE

• People• Procedures• Paperwork



PEOPLE

Who should communicate the decision?

Does that person have: • Skills and personal qualities to effectively

communicate decision?• Knowledge of the facts?



PEOPLE

Did the person communicating the decision hire or promote the employee?

Is that person in the same protected class as the employee?

Who else should witness discharge? What role should HR play? Should legal counsel be involved?



PROCEDURESPreliminary Review

Require advance approval Consider potential legal challenges Review documentation available Recognize oral testimony after the fact is

never as convincing as documentation Consider the employee’s story Suspend and review



Fully investigate before acting Review past discipline for comparators Was progressive discipline used? Review past discipline for impact on

protected classes Identify a precipitating event Avoid delay

PROCEDURESPreliminary Review



PROCEDURESPlan the Discharge Meeting

Prepare brief, truthful explanation Arrange for retrieval of employer property Arrange for removal of belongings Secure the electronic systems Consider security issues



PROCEDURESPlan the Discharge Meeting

Where? When? Anticipate predictable questions Prepare brief, truthful responses Review separation benefits Prepare an outline



PROCEDURESThe Discharge Meeting

Introductory remarks Convey the decision Plan for exit



PROCEDURESThe Discharge Meeting

Avoid blaming or accusing the employee Anticipate surprise or resentment Give the employee dignity



PROCEDURESCommunicating with Other Employees

• Focus on forward transition of duties

• Be truthful, but limit what you say

• Avoid defamation



PAPERWORK

• Review existing paperwork• Supplement with additional paperwork• Consider effect of “other” paperwork



BE CAREFUL AFTER EMPLOYMENT ENDS

• Exit interviews• Reference checks• Unemployment claims• Other legal claims



Clarence BelnavisFisher & Phillips, LLP

111 SW Fifth Avenue, Suite 1250Portland, Oregon 97204

Direct: [email protected]

FINAL QUESTIONS

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