If you ask any manager what their least favorite part of their job is, odds are one of the top answers will be about firing or reprimanding employees. Having to terminate or discipline an employee is perhaps one of the most uncomfortable and unpleasant parts of being a manager. In this webinar, Sean O'Donnell, one of G&A Partners' HR experts, will talk about some best practices and potential legal pitfalls for managers when issuing employee disciplinary actions and terminations.

1. Discipline
&
Termina/on
for
Supervisors
G&A
August
2015

2. ROLE
OF
THE
SUPERVISOR

3. What
is
Your
Role
Related
to…
• Repor/ng
problems?
• Harassment
complaints
• Confiden/ality?
• Administra/ve
tasks
(paperwork)?
• Giving
feedback
to
employees?

4. Some
Tips
• Socializing
with
Employees:
When
you
are
there,
everything
is
assumed
to
be
said
or
done
with
the
tacit
approval
of
management.
• Get
to
know
and
care
about
your
employees,
but
balance
friendship
and
authority
so
you
can
s/ll:
Ø Review
performance
Ø Maintain
team
morale
Ø Maintain
confiden/ality
• Set
regular
/mes
for
reviewing
performance.
Ø Otherwise
you
only
talk
about
problems.
• Do
not
ever
discuss
employment
decisions
or
performance
with
other
employees.

5. DISCIPLINE
&
TERMINATION
Supervisor
Training

6. EEOC
Press
Release
7/19/2012
Hawaii
Healthcare
Professionals,
Inc
and
its
owner
have
been
ordered
to
pay
$193,236
to
a
woman
allegedly
fired
due
to
her
age.
• The
company’s
owner,
Carolyn
Frutoz-­‐De
Harne,
ordered
the
2008
termina/on
of
Debra
Moreno,
a
then-­‐54-­‐year-­‐old
office
coordinator
at
its
Maui
facility,
according
to
the
EEOC.
The
termina/on
proceeded
despite
reports
by
the
facility’s
manager,
who
actually
hired
and
supervised
Moreno,
that
Moreno
was
a
thorough
and
efficient
worker.
• Frutoz-­‐De
Harne
allegedly
ordered
that
Moreno
be
fired
a^er
telling
the
manager
that
Moreno
“looks
old,”
“sounds
old
on
the
telephone,”
and
is
“like
a
bag
of
bones.”
Frutoz-­‐De
Harne
also
allegedly
told
the
manager
that
Moreno
was
not
the
type
of
person
she
wanted
represen/ng
her
company,
the
EEOC
said.
• A^er
the
termina/on,
the
manager
reported
the
ageist
comments
to
Moreno,
who
in
turn
filed
a
discrimina/on
charge
with
the
EEOC.”

7. Lessons
from
Debra
Moreno
1. Don’t
make
discriminatory
comments
2. “Same-­‐actor
inference”
defense:
If
hired
and
terminated
by
the
same
person,
discrimina/on
is
unlikely
3. Documenta/on
did
not
support
the
termina/on
4. Supervisor
said
too
much
to
the
employee

8. Discipline
&
the
Law
• EEO
Laws
-­‐
Discrimina/on
• Consistency
and
Fairness
• Retalia/on
• NLRA
–
complaints
and
unions
• Worker’s
Compensa/on
• Unemployment
• Wrongful
Discharge

9. Protected
Groups
• Race
• Color
• National origin
• Religion
• Sex/Pregnancy/
Sexual orientation
• Age
• Disability
• Genetic information
• Others by State/ City

10. Consistency
&
Fairness
Always…
• Address
bad
behavior
promptly
• Treat
similar
viola/ons
similarly
• Discipline
appropriate
to
the
viola/on
• Follow
policy
(check
handbook)
But…
• Only
discipline
when
necessary

11. EEOC
Press
Release
4/5/2011
Federal
Agency
Charged
Black
Tanzanian
Network
Analyst
Was
Fired
While
White
Counterpart
Was
Merely
Disciplined
• Broadband
Company
Pays
$60,000
To
Sejle
EEOC
Race
And
Na/onal
Origin
Discrimina/on
Suit
• In
its
lawsuit,
(Case
No.:
1:10-­‐CV-­‐03106),
the
EEOC
charged
that
a
black
Tanzanian
network
analyst
was
fired
for
leaving
work
30
minutes
early.
• However,
a
similarly
situated
white
network
analyst
received
only
a
wrijen
discipline
a^er
leaving
work
two
hours
early,
twice
in
one
week.
• “The
EEOC
filed
this
lawsuit
because
the
difference
in
treatment
between
these
employees
was
clear,
and
a
woman
lost
her
livelihood
due
to
this
discrimina/on,”
said
Robert
Dawkins,
regional
ajorney
for
the
EEOC’s
Atlanta
District
Office.
“It
is
plainly
illegal
to
treat
employees
differently
because
of
their
race
or
na/onal
origin.
This
resolu/on,
we
trust,
will
prevent
such
disparate
treatment
in
the
future.”

12. Unemployment
Claims
• Culpability
–
“The
conduct
causing
the
discharge
must
be
so
serious
that
con/nuing
the
employment
rela/onship
would
jeopardize
the
employer's
righoul
interest.”
• Knowledge
-­‐
“The
claimant
must
have
had
knowledge
of
the
conduct
the
employer
expected.”
• Control
–
“The
conduct
causing
the
discharge
must
have
been
within
the
claimant's
control.
”
Cost
you
money
in
UI
premiums.
To
win
an
unemployment
claim,
generally
you
must
demonstrate
that
the
employee
had:

13. Before
Using
Discipline
• Observe
the
behavior
firsthand
or
inves/gate
• Consider:
Ø Severity
of
offense
Ø Employee’s
prior
history
Ø Mi/ga/ng
circumstances
Ø Was
the
employee
aware?
Ø Precedent
Ø Policy
Ø Consul/ng
HR

14. Inves/ga/ons
• Get
the
facts
• Explain
the
facts
• Document
the
facts
• Interview
witnesses
• For
serious
cases
–
involve
HR

15. EEOC
Press
Release
2/7/2013
Company
Fired
Employee
for
Not
Wearing
ProstheOc
Arm
• MIAMI
-­‐
A
Florida
full-­‐service
asset
protec/on
security
firm
violated
federal
law
by
firing
an
employee
because
of
his
disability,
a
missing
arm,
and
then
punishing
him
for
complaining
about
the
discrimina/on,
the
U.S.
Equal
Employment
Opportunity
Commission
(EEOC)
charged
in
a
lawsuit
it
filed
today.
• The
EEOC
had
charged
that
Florida
Commercial
Security
Services,
Corp.,
doing
business
as
Florida
Construc/on
Security
Services
(FCSS),
terminated
a
guard
for
failing
to
wear
his
prosthe/c
arm,
even
though
it
was
unnecessary,
and
then
refused
to
assign
him
to
another
posi/on
because
he
filed
a
discriminaSon
charge
with
the
EEOC.
• "The
ADA
requires
that
people
with
disabili/es
be
judged
on
their
ability
to
perform
the
essenSal
funcSons
of
the
job
-­‐-­‐
not
on
stereotypes
or
appearances,"
said
Robert
E.
Weisberg,
regional
ajorney
for
the
EEOC's
Miami
District
Office.
"Customer
complaints
about
an
employee's
appearance
created
by
his
disability
are
not
a
legi/mate
reason
to
terminate
him.“
EEOC
Sues
Florida
Construc/on
Security
Services
for
Disability
Discrimina/on
and
Retalia/on,
EEOC
Newsroom,
2/7/2013

16. Discipline
Op/ons
• Coaching
and
feedback
• Verbal
warning
• Wrijen
warning
“write-­‐up”
• Performance
Improvement
Plan
(PIP)
• Suspension
without
pay
• Termina/on

17. Progressive
Discipline
• Sets expectations
• Accountability – employee must change
or leave…may choose to resign
• Correct the behavior – easier to retain
than retrain
• Deterrent – other employees notice

18. The
Discipline
Mee/ng
• Meet
in
private
• Witness
present
• Review
the
poor
performance
• Explain
expected
performance
(w/deadline)
• Review
the
form
• Ask
them
to
sign
• Allow
employee
comments
• Give
them
a
copy
of
the
form
• CONFIDENTIALITY

19. Termina/on
–
Extra
steps
• Consult
G&A
• Collect
documenta/on
–
always
• Final
check
• Utah
-­‐
Must
pay
within
24
hours
of
termina/on
• (Resigna/ons:
on
next
regular
payday)

20. The
Termina/on
Mee/ng
• Meet
in
private
• Witness
present
• Get
to
the
point
• Review
term
form
• Ask
them
to
sign
• Give
them
a
copy
of
the
form
and
final
check
• Submit
term
form
to
HR

21. Documenta/on
Helps
Employer
Win
Discrimina/on
Lawsuit
• “The
Seventh
Circuit
recently
upheld
the
summary
judgment
dismissal
of
a
former
hospital
worker's
claims
for
na/onal
origin
and
age
discrimina/on
a^er
the
worker
was
fired
for
repeatedly
sending
"nega/ve,
unprofessional,
and
disrespecoul"
emails
to
her
boss
and
other
co-­‐workers.
• Notably,
the
plain/ff
presented
evidence
that
her
2008
and
2009
performance
evaluaSons
were
"saSsfactory"
and
that
several
of
her
co-­‐workers
made
a
variety
of
remarks
about
her
Puerto
Rican
naSonal
origin.
• However,
the
hospital
employer
had
documented
its
various
disciplinary
acSons
with
plain/ff,
including
two
counseling
sessions
Human
Resources
had
with
her
in
April
2010
regarding
her
unprofessional
communica/ons
with
peers
and
supervisors
and
a
wrijen
warning
in
July
2010
for
similar
conduct.
In
April
2011,
a^er
learning
about
three
more
unprofessional
emails
sent
by
the
plain/ff
to
her
boss,
the
hospital
fired
her.
• The
Seventh
Circuit
held
that
the
plain/ff's
evidence
of
meeSng
expectaSons
on
her
performance
evaluaSons
was
essenSally
trumped
by
the
more
recent
and
thorough
documentaSon
of
the
plainSff's
discipline
issues,
thus
elimina/ng
a
triable
issue
of
fact.”
Employer's
Contemporaneous
Documenta/on
of
Verbal
Counseling
Helps
It
Win
Discrimina/on
Lawsuit,
Laner
Muchin,
2/18/2014

22. Lessons
from
Margarita
Zayas
• Supervisor
gave
nega/ve
performance
feedback
Ø and
documented
it!
• Good,
recent
documenta/on
even
trumped
performance
review
• The
case
didn’t
have
to
go
to
jury
Ø employers
don’t
get
much
sympathy
from
juries
• Same-­‐actor
inference
helped
this
/me

23. Documenta/on
• Complete
promptly
a^er
the
incident
• Facts
only:
use
dates,
/mes
and
details
• No
judgments,
emo/ons
or
conclusions
• Types
of
Documenta/on
Ø Supervisor
Ø Company
Ø G&A

24. Documenta/on:
What
to
include
• Employer’s
expecta/on
• How
the
employee
has
failed
to
meet
that
expecta/on
• Prior
counseling
or
discipline
• The
employer’s
expecta/ons
going
forward
• The
consequences
of
the
employee’s
failure
to
make
the
requisite
improvement
Blunders
in
Documen/ng
Discipline,
SHRM
9/23/2014

25. Documenta/on:
Common
Mistakes
• Using
labels
without
providing
behavioral
examples
• Using
words
that
sound
like
“proxies”
for
bias
retalia/on
• Focusing
on
the
employee’s
intent
(as
opposed
to
results)
• Focusing
on
the
perceived
cause
of
a
performance
problem
as
opposed
to
the
problem
itself
• Using
absolutes
that
are
not
credible
• Hedging
so
much
that
the
employer
seems
uncertain
of
the
basis
for
its
own
decision
• Including
too
much
detail
• Using
technical
rather
than
plain
language
• Failing
to
make
clear
the
consequences
of
lack
of
improvement
• Using
labels
that
may
create
liability
Blunders
in
Documen/ng
Discipline,
SHRM
9/23/2014

26. Documenta/on:
Examples
Problema/c
Documenta/on:
• Jim
has
a
poor
awtude
when
asked
to
complete
work
assignments.
Bejer
Documenta/on:
• On
May
4,
2012,
I
asked
Jim
to
have
the
quarterly
report
turned
in
by
May
7th.
Jim
rolled
his
eyes
and
said
“Yeah,
right”
then
walked
out
of
my
office.

27. Documenta/on:
Examples
Problema/c
Documenta/on:
• Maj
is
always
late,
even
a^er
he
has
been
given
a
warning.
Bejer
Documenta/on:
• Maj
is
scheduled
to
be
at
work
at
8:00
a.m.
On
March
15,
2012,
he
arrived
at
8:15
a.m.;
the
following
day
he
arrived
at
8:20
a.m.
On
March
16,
I
told
Maj
that
he
needs
to
be
here
by
8:00
a.m.
or
we
would
proceed
with
disciplinary
ac/on.
Maj
said
that
he
would
be
here
at
8:00
a.m.
On
March
26,
Maj
arrived
at
8:30
a.m.

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Cer/fica/on
Ins/tute.
We
will
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out
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recerSficaSon
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The
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endorsement
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Cer/fica/on
Ins/tute
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It
means
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met
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Cer/fica/on
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QUESTIONS?
G&A
Partners
info@gnapartners.com
(800)
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*This webinar has been recorded and will be posted on the G&A website by Friday.