Positive Employee
Relations
J. Bruce Cross
Cross, Gunter, Witherspoon & Galchus, P.C.
500 President Clinton Avenue, Suite 200
Little Rock, Arkansas 72201
bcross@cgwg.com
501.371.9999
www.cgwg.com
Top Mistakes Made by Employers
•
•
•
•
•
•
SELECTION PROCESS
IMMIGRATION ISSUES
NOT KNOWING THE LAWS TO WHICH YOU ARE
SUBJECT
PROTECTING AGAINST RETALIATION CLAIMS
HARASSMENT PREVENTION
DISCIPLINE, TERMINATION, & DOCUMENTATION
SELECTION PROCESS
THE SELECTION
PROCESS–
INTERVIEWING/HIRING/PROMOTI
4
THE LEGAL ENVIRONMENT

Legal protection against discrimination based on
race, color, sex, age, national origin and religion
have to be considered in the selection phase.

Also, the Americans with Disabilities Act
prohibits inquiries into disabilities or perceived
disabilities.
TOOLS FOR CREATING THE PROPER
SELECTION PROCEDURES
 Job Applications
 Interviews
 Reference Checks
6
JOB APPLICATIONS:
GETTING THE DATA YOU NEED
7
ONLINE VS. PAPER
APPLICATION PROCESS
8
ONLINE BETTER AS GIVES
ADDITIONAL MEANS TO LEGALLY
ELIMINATE CANDIDATES
THROUGH USE OF “BASIC
QUALIFICATIONS”
9
 EXAMPLES OF “BASIC
QUALIFICATIONS”:
 Engineering Degree
 3 years of work experience as an Electrical
Engineer
10
Special Rules for Internet
Applicants
The Internet Applicant Rule:
 Must ask all “Internet applicants” who meet
the “basic qualifications” for a job to identify
their race, ethnicity, and gender.
 Must maintain all “expressions of interest”
made through the Internet or related
electronic data technologies
11
Special Rules for Internet
Applicants
Definition of “Internet Applicant:”
 Expresses an interest through Internet or
related technology
 Considered for employment in particular
position
 Indicates that he or she has “basic
qualifications”
 Does not remove himself or herself from further
consideration
12
Special Rules for Internet
Applicants
Internet related technologies include:
 Email
 Resume databases
 Job banks
 Electronic scanning technology
 Applicant tracking systems
 Applicant screeners
13
Proper Procedures
 Decide minimum qualifications (plus basic
qualifications if using an online system)
 Outside Applicants?
 Post any vacancy
 Do not accept internal applications from
employees who do not meet the “basic
qualifications” if using online system
 Review personnel files of internal applicants
14
Proper Procedures
 Select most qualified applicant
 Identify race and sex of the qualified pool of
applicants
 Advertise openings in media that is available
to minorities and women
 Do not fill a job vacancy until the application
period is closed
15
Tools for Creating the Proper
Hiring Procedure
The Interview
16
The Interview Should Focus Upon:
• Job Responsibilities
• Environmental Factors
• Personal Characteristics
• Physical Requirements
17
USE THE JOB DESCRIPTION
TO ASSIST YOU IN FOCUSING
ON THE ABOVE ELEMENTS!
18
QUESTIONS TO AVOID
 Race, national origin, religion, or age
 Marital and family status - including child
care problems
 Contraceptive practices
 Plans to have children
 Height or weight
 Disabilities
QUESTIONS TO AVOID
 Friends or relatives working for your
company
 Arrest records
 The applicant’s credit rating or other
financial data
 Home ownership
THE INTERVIEW
You need to control the interview:
1. Allow applicant to talk but be prepared to
cut them off if rambling. Time is valuable.
2. Since candidates are pre-screened by
Human Resources, need not probe deeply
into extraneous areas.
THE INTERVIEW
A Conversation with a Purpose
 Job Responsibilities
 Environmental Factors
 Personal Characteristics
 Physical Requirements
Common Interviewing Errors
TALKING TOO MUCH
A.
B.
The interviewer should only talk about
25% of the time.
Your primary goal is to get to know the
applicant and determine if the individual
has the skills to do the job.
Remember:
You should listen more than talk!
THE “HALO EFFECT”
 This is the tendency to see applicants as all
good or all bad based on an outstanding
trait.
 For example, when an articulate applicant
is well liked because of his/her
communication skills, we often assume that
his/her unrelated skills are equally strong.
FIRST IMPRESSIONS
 Interviewers frequently base final
decisions on superficial first
impressions rather than a thorough
analysis of the applicant’s ability to
do the job.
PERSONAL BIAS
 Be aware of your biases and focus on
specific past performance and the
qualifications for the job as the basis for
your selection decision.
“SIMILAR TO ME”
Interviewers have a tendency to be partial to
applicants who are similar to themselves.
REMEMBER:
You are interviewing for someone to work for
you. You are not interviewing for someone to be
your friend or to “hang out with!”
TELEGRAPHING
 The interviewer communicates early in
the interview, either verbally or nonverbally, what he/she wants in a new
employee.
 The perceptive applicant simply repeats
this back to the interviewer and appears
to be a perfect fit.
ASKING “WHAT IF” QUESTIONS



Hypothetical questions lead to theoretical
answers. Applicants good on theory are
not necessarily good on follow-through.
Theoretical questions: use words like:
“would do,” “going to,” etc.
Behavioral questions: use words like,
“did,” “have done,” “currently doing,” etc.
ASKING INAPPROPRIATE
QUESTIONS
Questions relating to an applicant’s race,
religion, sex, national origin, disability or
veteran status, or age are inappropriate
unless the employer can prove that the
information is job-related.
CONTRAST EFFECTS
 If an interviewer talks with three poor
applicants in a row, a mediocre applicant
following these three may get
undeservedly high ratings.
 When evaluating applicants, refer back to
the job requirements as your standard, not
just other applicants.
REMEMBER :
Your goal in the interview:
Determining who is the best
candidate to perform the essential
functions of the job. Thus, which
candidate has the necessary/best
skills and knowledge to do that job.
TOOLS FOR CREATING THE
PROPER SELECTION
PROCEDURE
SCREENING REFERENCES
34
Arkansas Reference Act
A.C.A. § 11-3-204
 Provides current and former employers with
protection for providing job information
 Allows a current or former employer to
disclose certain information about the
employee provided that it obtains consent
from the employee in writing.
35
Arkansas Reference Act
•Allows a current or former employer to
disclose the following information:
•Date and duration of employment
•Current pay rate and wage history
•Job description and duties
•Last written performance evaluation
•Attendance information
36
Arkansas Reference Act
 Results of drug or alcohol tests
administered within one year
 Threats of violence or harassing acts
 Whether employee was voluntarily or
involuntarily separated from
employment, and the reasons for
separation
37
Arkansas Reference Act
 Whether the employee is eligible for rehire
38
Proper Procedures
 Review all applications, interview notes, and
reference checks
 Identify applicants who do not meet the
“basic” and minimum qualifications and do
not consider further
39
Immigration Issues
 Independent Contractors
 Legislation
 I-9s
 Social Security No Match Letter
NOT KNOWING THE LAWS TO
WHICH YOU ARE SUBJECT
General Employment Laws









Title VII
42 U.S.C. § 1981
Arkansas Civil Rights Act
Age Discrimination in Employment Act
Equal Pay Act
Americans with Disabilities Act (ADA)
Family and Medical Leave Act (FMLA)
National Labor Relations Act
Uniformed Service Employment and
Reemployment Act (USERRA)
43
Title VII
 Title VII prohibits discrimination on the basis of
race, color, religion, sex, pregnancy or national
origin
 Title VII applies to all employers who are engaged
in interstate commerce and have 15 or more
employees
44
Title VII
 Provides for “make whole” remedies
 Remedies
 Back Pay
 Front Pay
 Attorney’s Fees
 Compensatory and Punitive Damages
 Injunctive Relief
 Injunctions may range from order of reinstatement to
general order not to discriminate
45
42 U.S.C. §1981
 Coverage:
• All private employers regardless of the number
of employees
• Applies to all aspects of employment
 Protection:
• Racial discrimination
• Does not apply to sexual or religious
discrimination
• Does not apply to national origin discrimination,
but it may apply to questions of alienage
46
42 U.S.C. §1981
 Remedies
•Back Pay
•Front Pay
•Attorney’s Fees
•Compensatory & Punitive Damages
•Injunctive Relief
47
Arkansas Civil Rights Act
 Coverage
 Companies with fewer employees than
Title VII (9)
 Protection
 Prohibits discrimination on the basis of
race, religion, ancestry, or national origin,
gender, or the presence of any sensory,
mental or physical disability
 Supervisor individual liability?
48
Arkansas Civil Rights Act
 Remedies
 Affirmative Relief
 Back pay
 Interest
 Costs
 Attorney Fees
 Compensatory and punitive damages
49
Some Differences Between
Arkansas CRA and Title VII
 Go directly into Court
 No requirement to exhaust administrative
remedies
 May allow one year to file suit under State
CRA vs. 90 days under Title VII
 Greater damage potential under Title VII
 Federal – 15 employee minimum; State CRA
allows much lower employee minimum
50
Age Discrimination in
Employment Act
 The ADEA prohibits discrimination on the
basis of age. It applies to individuals 40 years
of age and older.
 The ADEA applies to employers engaged in
interstate commerce with 20 or more
employees.
51
Age Discrimination in
Employment Act
 Under this act, it is unlawful to force an employee
to retire, and it is also unlawful to give preference
because of age to one person over another, even
if they are both in the protected age group.
52
Equal Pay Act
 Coverage
 Prohibits wage differentials based on sex
 Protection
 Requires equal pay for male or female employees
who are performing work that is substantially equal
in skill, effort & responsibility & is performed under
similar working conditions
53
Equal Pay Act
 Remedies
 Wages lost
 Liquidated damages
 Attorney’s fees
54
American with Disabilities Act
GENERAL RULE
An employer shall not, because of a disability,
discriminate with regard to any term or
condition of employment against a qualified
individual with a disability who can, with or
without reasonable accommodation, perform
the essential functions of the job, unless such
accommodation would create an undue
hardship or constitute a direct threat to safety.
55
ADA
A qualified individual with a disability is someone
who can perform the essential functions of the job
with or without reasonable accommodation
56
WHO IS PROTECTED?
 Qualified individual
 With a disability,
 With a record of a disability,
 Regarded as being disabled, or
 Associated with a person with a
disability.
57
QUALIFIED INDIVIDUAL
 Meets experience and educational qualifications
for the job, and
 Can perform essential functions of job
 With or without a reasonable accommodation, and
 Is not a direct threat.
58
RIGHTS AND REMEDIES
UNDER THE ADA
► Back
pay
► Reinstatement;
► Promotion and hiring; and
► Attorney’s fees.
59
Management’s Responsibilities
 Certain steps are key in accommodating an employee
with a disability. The most important thing for a
manager to remember is that he/she must contact
Human Resources or your equivalent person for any
ADA/related decisions – not only for consistency, but to
ensure compliance with the law.
 If an employee requests an accommodation, or doctor
places restrictions on an employee and he/she is
unable to perform an essential function(s) of the job, a
manager’s first step is to contact HR.
Management’s Responsibilities
(con’t)
 Human Resources will work with the manager
and the individual with a disability to determine
the precise job-related limitations. Management
should also ask the employee if there are any
accommodation requests that he/she would like
to suggest for consideration.
Management’s Responsibilities
(con’t)
 Human Resources will determine what assistance is
available to accommodate the employee.
 Once accommodation alternatives are researched,
the Company will look at possible accommodations
and agree on the accommodations most appropriate
for the employee and the Company, if any.
Family and Medical Leave Act
 Covered employers must provide a worker with
up to 12 weeks of unpaid leave during any 12month period for the following events:
 For the birth of a son or daughter, and to care for the
newborn child;
 For placement with the employee of a son or daughter
for adoption or foster care;
 To care for the employee’s spouse, son, daughter or
parent with a serious health condition;
 Because of a serious health condition that makes the
employee unable to perform the functions of the
employee’s job;
63
Family and Medical Leave Act
(Con’t)
 Because of any qualifying exigency arising out of the
fact that the employee’s spouse, son, daughter or
parent is a covered military member on active duty (or
has been notified of an impending call or order to active
duty) in support of a continuing operation; and
 To care for a covered service member with a serious
injury or illness if the employee is the spouse, son,
daughter, parent or next of kin of the service member.
64
Covered Employees
 ADA: All employees
 FMLA: Employed 12 months, worked 1250
hours in previous 12 months
• 50 or more employees within a 75 mile
radius
65
Covered Injuries
 ADA: Disability
 FMLA: Serious Health Condition/Military
Injuries
66
National Labor Relations Act
 Protects employee rights to organize
 To engage in Union activity & collectively bargain
 Strong language to protect employees
 Cannot discriminate
 Does not only apply to Union activities
67
Uniformed Services Employment and
Reemployment Rights Act (USERRA)
 Employer may not refuse an employee’s military
leave of absence or discriminate with regard to
employment or reemployment based on military
service.
 Protects employees who have been absent from
a position of employment as a result of “service
in the uniformed services.”
68
Anti-Discrimination
In Employment Laws
 The heart of the anti-discrimination laws is Title VII
of the Civil Rights Act which provides that an
employer may not discriminate against any
individual with respect to compensation, terms,
conditions, or privileges of employment because of
the individual’s race, color religion, sex or national
origin.
69
Anti-Discrimination in
Employment Laws
 Applicants for employment are also protected, as
well as persons who are actually hired.
 While Title VII clearly prohibits overt, intentional
discrimination (“disparate treatment”) it also
prohibits employment practices that are “fair in
form but discriminatory in operation”, frequently
referred to as “disparate impact”.
70
Enforcement by the EEOC
 Title VII, along with the Age Discrimination and Employment
Act which provides protection for workers forty (40) years of
age and older, the Americans with Disabilities Act which
provides protection for persons with a disability and the
Equal Pay Act are administered and enforced by the Equal
Employment Opportunity Commission (“EEOC”). The
EEOC investigates all charges of discrimination, and,
where appropriate, seeks a voluntary settlement of the
discriminatory practice, dismisses the charge, or makes a
finding that discrimination has occurred.
71
Enforcement by the EEOC
 To pursue a claim of discrimination in Arkansas, an
individual must file a charge with the EEOC within
180 days of the alleged discriminatory act, or it will
be deemed untimely.
72
Enforcement by the EEOC
 Before a person may obtain judicial relief in the
form of a lawsuit based on the alleged
discriminatory practices, the person must obtain a
Notice of Right to Sue from the EEOC. The
individual must then file a lawsuit in federal court
within 90 days of the receipt of the Right to Sue
letter.
73
Enforcement by the EEOC
 The processing of a grievance with an employer
will not suspend the time period for filing an EEOC
Charge.
74
EEOC Charges
 In Arkansas, charges must be filed with the EEOC
within 180 days of the alleged discriminatory act,
or it will be deemed untimely.
 EEOC will subsequently serve a copy of the
charge on the employer
 If no mediation, then the Employer provides a
position statement.
75
EEOC Charges
 Before a lawsuit, the person must obtain a Notice
of Right to Sue from the EEOC
 The individual must then file a lawsuit in federal
court within 90 days of the receipt of the Right to
Sue letter.
76
PROTECTING AGAINST
RETALIATION CLAIMS
42 U.S.C. § 2000e-3 –
Retaliation Law
 “It shall be an unlawful employment practice
for an employer to discriminate against any of
his employees or applicants for employment,
for an employment agency . . . to discriminate
against any individual, or for a labor
organization to discriminate against any
member thereof or applicant for membership .
. .”
78
42 U.S.C. § 2000e-3 –
Retaliation Law
 …because he has opposed any practice made
an unlawful employment practice by this
subchapter, or
 …because he has made a charge, testified,
assisted, or participated in any manner in an
investigation, proceeding, or hearing under this
subchapter.”
79
How is a violation demonstrated?
 Prima facie case:
 Basis:
• plaintiff engaged in protected activity
 Issue:
• “adverse employment action” imposed
 Causal connection:
• adverse employment action taken because
of protected activity
80
Participation under Title VII
 Participation is broadly construed and covers all
aspects of communicating (or refusing to
communicate) allegations or evidence to a civil
rights enforcement agency or an internal
complaint investigatory procedure.
81
Adverse Employment Action
 What is it? Some examples:
 termination
 suspension
 reduction in hours
 reduction in pay or denial of a raise
 placement on involuntary unpaid maternity leave
 negative statements about an employee
 filing criminal charges
 false police report
 refusal to rehire
82
Adverse Employment Action
 What is it not? Some examples:
 barring terminated employees from using company
facilities to find a new job
 contesting unemployment compensation
 engaging in reasonable protective measures to defend
against the employee’s claims
83
Causal Connection

The plaintiff typically may establish a causal
connection by proving:


Order – that the protected activity preceded the
adverse action; and
Employer knowledge – that the employer was aware
of the plaintiff’s protected participation or opposition
before taking the adverse action.
84
Causal Connection
 Key question: How much time passed between the
protected activity and the adverse employment
action?
 Burden on plaintiff to prove the defendantemployer’s non-retaliatory reason for the adverse
employment action was pre-textual
85
Causal Connection
 Some non-retaliatory reasons:
 insubordination
 refusal to perform assigned work
 falsifying information
 poor relationships with other employees
 violence directed toward a co-worker
 poor work performance
 lack of job qualifications
 the existence of more qualified applicants
 departmental reorganization
 unprotected forms of participation or opposition
86
Internal Complaints
 Every employer should have at a
minimum an open door policy or
practice in order to reduce the potential
for liability.
 This policy/practice allows employees to
talk to their supervisor or Human
Resources about workplace issues.
87
Internal Complaints
 Discrimination Workplace Violence and
Harassment
 For serious complaints such as these, an
established, well-publicized policy provides
a structure for the employee to
communicate these serious issues with the
confidence that the complaints will be taken
seriously and given the consideration they
deserve.
88
HARASSMENT PREVENTION
SEXUAL HARASSMENT
• Title VII – It shall be an unlawful employment
practice for an employer to fail or refuse to hire an
applicant or to discharge, or discriminate against an
employee with respect to compensation, terms,
conditions, or privileges of employment because of
such individual’s . . .
• Race, color, religion, sex, national origin.
• Other statutes include age & disability
90
DEFINITION CHANGED
• Initially, sexual harassment was defined as a
demand for sexual favors to obtain or retain a
job benefit.
• Now expanded to include any imposition of an
unwanted condition of employment because
of that person’s sex.
91
THREE CATEGORIES:
• Quid Pro Quo
• Acts of gender-based animosity.
• Sexually hostile environment.
• Elements
• Based upon protected status
• Unwelcome
• Severe and Pervasive
92
A HOSTILE WORK ENVIRONMENT
CAN INCLUDE:
• PORNOGRAPHIC MAGAZINES;
WHAT IS PORNOGRAPHIC?
• HUSTLER?
• PENTHOUSE?
93
WHAT ABOUT COSMOPOLITAN?
94
95
• GQ?
96
97
98
A HOSTILE WORK ENVIRONMENT
CAN INCLUDE:
- Vulgar Employee Comments;
- Offensive Sexual Jokes;
- Comments on how Someone’s Clothing
Fits or Looks, Physical Attributes, Etc.;
- Demeaning Comments;
- “Looks” or “Leering”
99
A HOSTILE WORK ENVIRONMENT CAN
INCLUDE:
TOUCHING SOMEONE, INCLUDING
“FRIENDLY” PATS, SQUEEZES OR
PINCHES
100
101
ESTABLISHING A CASE
WHAT ELEMENTS MUST BE
SHOWN TO ESTABLISH A CASE OF
HARASSMENT?
102
Elements to be Established
• CONDUCT MUST BE:
- Unwelcome
- Based upon Protected Status
- Severe and Pervasive
103
- WHAT IS UNWELCOME?
- MUST THE PERSON SAY IT IS?
104
CONDUCT MUST BE BASED
ON AN EMPLOYEE’S
PROTECTED STATUS
105
BASED ON
EMPLOYEE’S GENDER?
Does that mean:
• Same sex harassment can
occur?
• If equal opportunity harasser,
may not be liable?
106
Is this “based upon Protected
status”?
107
CONDUCT MUST BE
SEVERE AND PERVASIVE
108
WHAT IS SEVERE & PERVASIVE?
• Totality
of the Circumstances,
Unreported Incidents.
• Consider:
Including
• The Frequency of the Discriminatory Conduct; and
• Its Severity; and
• If Physically Threatening or Humiliating
109
WHAT IS SEVERE & PERVASIVE?
• Whether it interferes with employee’s work
performance.
• Must meet both:
• A reasonable person would find it hostile or abusive;
and
• The victim perceived it as hostile or abusive.
110
WHAT IS SEVERE & PERVASIVE?
• Psychological injury not required
• Sufficient that employee “felt afraid,
intimidated, & anxious, & that those
feelings had a detrimental impact on
her psychological well-being & on her
ability to perform her work”
111
112
WHAT IS SEVERE & PERVASIVE?
• Isolated incidents may suffice
• If severe, a single act can suffice.
113
WHAT IS SEVERE & PERVASIVE?
•
Where remote in time, not
sufficient.
•
Look at premeditation, setting,
and physical nature of the acts.
114
WHEN IS THE EMPLOYER LIABLE FOR ACTIONS
OF OTHERS?
• Liability depends on whether harasser is:
• Supervisor, and there has been a tangible adverse
employment action taken; or
• Supervisor, and there has been no tangible adverse
employment action taken; or
• Not a Supervisor.
115
WHO IS A SUPERVISOR?
•
•
•
Any person who has the ability to
take a tangible adverse employment
action against another employee.
Any person with authority to affect the
terms & conditions of employment.
May not need to be in the direct chain
of command of employee.
116
WHAT IS A TAEA?
• The Eighth Circuit held that a tangible adverse
employment action is a tangible change in working
conditions that produces a material employment
disadvantage.
• Termination, revocation in pay or benefits, and
changes in employment that significantly affect an
employee’s future career prospects meet this
standard.
117
• The Eighth Circuit has also held that a
constructive discharge constituted a tangible
adverse employment action.
118
WHEN IS THE EMPLOYER LIABLE
FOR ACTIONS OF SUPERVISOR?
• Liability for employer if:
• Harassment by supervisor with immediate or higher
authority and
• There is a tangible adverse employment action.
119
WHEN IS THE EMPLOYER LIABLE FOR ACTIONS
OF SUPERVISOR?
• Liability is presumed, but affirmative
defense is available if:
• Harassment by supervisor with
immediate or higher authority; and
• There is no tangible adverse
employment action.
120
WHAT MUST THE EMPLOYER
DEMONSTRATE TO ESTABLISH
AN AFFIRMATIVE DEFENSE?
121
AFFIRMATIVE DEFENSE
• Employer exercised reasonable care to prevent &
correct promptly any sexually harassing behavior;
and
• Employee unreasonably failed to take advantage
of preventive/corrective opportunities provided by
employer or to avoid harm.
122
WHEN IS THE EMPLOYER LIABLE
FOR ACTIONS OF OTHERS?
• No liability if . . .
• Harasser is not a supervisor, and
• There is no tangible adverse employment action,
• Unless employee proves
• employer had knowledge, and
• failure to take action.
123
EMPLOYER LIABILITY
FOR RETALIATION
• Retaliation is illegal and discriminatory when
the employer takes an adverse employment
action against an employee because that
employee asserted a legal right or claim under
a statute.
124
EMPLOYER LIABILITY
FOR RETALIATION
• Does not have to be “tangible”
adverse employment action.
• U. S. Supreme Court recently
broadened the definition of what
could constitute retaliatory behavior.
125
EMPLOYER LIABILITY
FOR RETALIATION
• Illegal even if the underlying claim of
harassment is not proven
126
EMPLOYER OBLIGATION
TO PREVENT HARASSMENT
Affirmative steps to take:
• Develop and communicate a sexual
harassment policy.
• If no policy exists, a Company can not take
advantage of the affirmative defense.
• Tell all employees how to utilize the system.
127
EMPLOYER’S OBLIGATION
TO PREVENT HARASSMENT
• Communicate the Policy to your employees.
The Company can:
• Post Policy.
• Distribute to each employee.
• Periodic reminders.
• Repeat policy in meetings.
128
EMPLOYER’S OBLIGATION
TO PREVENT HARASSMENT
 Have employees acknowledge receipt of policy
and/or attendance at meetings while policy and
complaint process are discussed.
129
WHAT TO DO IF A COMPLAINT
IS REGISTERED?
130
INVESTIGATIVE PROCESS
Investigation should be:
1. Promptly done
2. Thorough
3. Done neutrally (Do Not Pre-Judge!)
131
INVESTIGATIVE PROCESS
• Conduct investigatory interviews with
• The complaining employee;
• All possible witnesses; and then
• The alleged harasser.
• Get signed statements if possible.
132
133
Don’t Pre-Judge because:
1.
Taints investigation thus
eliminating use of the Affirmative
Defense
2.
Complainant could be lying!
134
INVESTIGATIVE PROCESS
REMEMBER:
You can’t try to “get even” with
the complainant for making a
complaint
135
SAMPLE QUESTIONS TO ASK DURING
INVESTIGATION:
• Who harassed whom?
• What did each person involved do?
• What did each person say?
• When did the harassment happen?
• Did this happen before and how?
• Has any other employee been harassed? How?
When?
• What did the harassed employee want the
employer to do?
136
MISTAKES OFTEN MADE IN THE
INVESTIGATION PROCESS:
• Failure to conduct a prompt and effective
investigation.
• Failure to respect the employment rights of the
alleged harasser.
• Defamation of the target employee or others
involved in the investigation.
• Invasion of privacy when requesting and
disclosing information about employees.
137
MISTAKES OFTEN MADE IN THE
INVESTIGATION PROCESS:
• Investigatory techniques that amount
to false imprisonment or intentional
infliction of emotional distress claims.
138
INVESTIGATIVE PROCESS
• Treat the investigation as highly
confidential, but do not make absolute
assurances of confidentiality.
139
INVESTIGATIVE PROCESS
• Inform complaining employee, witnesses and
alleged harasser of anti-retaliation policy.
• Encourage to report any perceived retaliation.
• Inform complaining employee and alleged
harasser of conclusions from investigation.
• Take prompt corrective action . . .
• To end harassment; and/or
• To avoid perception of harassment or retaliation.
140
LIABILITY OF INDIVIDUAL
SUPERVISORS
• Assault
• Putting another person in fear of offensive touching.
• Battery
• Offensive touching.
• Intentional Infliction of Emotional Distress
• Damages: Unlimited
• Compensatory damages for emotional distress
• Punitive damages
• Under Arkansas Civil Rights Law?
141
DISCIPLINE, TERMINATION AND
DOCUMENTATION
WHY IS IT IMPORTANT TO
DISCIPLINE EMPLOYEES AND
DOCUMENT SUCH ACTIONS?
Answer:
Insure consistency, fairness
and provide protection to the
Company
143
BASIC PRINCIPLES FOR
ISSUANCE OF DISCIPLINE







Mandates Good Human Relations
Participative Management
Employee Involvement
Solicit Input
Listen
Patience
“Golden Rule”
144
BASIC PRINCIPLES FOR
ISSUANCE OF DISCIPLINE
 Uniform and Consistent Application
of Policies and Procedures
 Good Communication – clear,
concise directions
 Learn how to say “I was wrong”
145
Employee Due Process
 Notion of basic fairness
 Communication (notice) of behavior and job
performance standards
 Following procedures
 A chance to be heard before action is taken
146
Employee Due Process
 Full and timely investigation and follow-up (plus
cooling off period, too)
 A graduated system of penalties
 Unbiased review and an appeals process
147
Employer Social Responsibility
 To “salvage” employee
 Better us than society
148
Burden on Employer - Heavy
 Burden of proof, heavy
 Rules, policies, and discipline must be reasonable
 Discipline applied uniformly and non-discriminately
 Documentation – if it’s not written, it didn’t happen
149
Employee Responsibilities
 Maintenance of production/service standards –
quality, quantity and priorities
 Responsible use of working time – self and
other employees
 Cooperation with supervision and other
employees
 Respect for other employees and their property
 Observance of safety and health rules
150
Employee Responsibilities
(continued)
 Proper use and maintenance of company
equipment and materials
 Maintenance of attendance standards,
including notification
 Maintenance of housekeeping standards
 Protection of confidential information
151
Supervisors and Managers
Responsibilities
 Ensure employees are provided with the
fundamentals, tools, expectations, environment,
and feedback to be successful.
 Ensure employees are made aware of, and
reinforce compliance to, company rules,
regulations, and procedures.
 Schedule, stage, and direct work activities and
assignments and assess work performance and
conduct.
152
Supervisors and Managers
Responsibilities
 Provide employees with work clarification and
additional instruction when needed.
 Provide assistance and resolution when a
willingness to stop is demonstrated.
 Conduct investigations into
behavior/performance/conduct issues when
necessary.
 Keep written records of informal corrective
actions, including improvement discussions and
coaching sessions.
153
Supervisors and Managers
Responsibilities
 Maintain confidentiality of the investigation process
and corrective actions.
 Contact HR or the equivalent for assistance.
154
HR Representatives Responsibilities
 HR is to provide guidance to managers and
supervisors in the following ways:
1. Conducting an investigation into
Conduct Guidelines and
Performance violations when
necessary and assess the need for
implementing the corrective action
process.
2. Assist managers and supervisors in
implementing corrective actions.
155
EMPLOYMENT-AT-WILL
WHAT DOES THAT MEAN?
156
An employer can terminate an
employee at any time, for any reason,
with or without cause. Likewise, an
employee can terminate the
employment relationship at any time,
with or without notice.
157
EXCEPTIONS TO
EMPLOYMENT-AT-WILL
 Statutory
 Federal & State Laws
 Judicial
 Violation of Public Policy
158
IN ISSUING DISCIPLINE, THE FOLLOWING
ELEMENTS MUST BE PRESENT:
1.
2.
3.
A violation of a work rule/policy or a
performance/behavioral problem.
A full and fair investigation into the situation
that may lead to discipline
Consideration given to all mitigating factors
prior to issuing discipline
159
1ST ELEMENT:
WORK RULE/POLICY
 Is there a written rule/policy?
 How was this employee informed of the written
rule/policy?
 If it is not written, how was the employee
informed of it?
 Is the rule/policy reasonable?
160
VIOLATION OF WORK RULE/POLICY
OR PERFORMANCE/BEHAVIORAL PROBLEM
Can you prove that this employee:
1. Violated the work rule/policy
2. Engaged in the inappropriate
behavior
3. Performed his/her job poorly
161
2ND ELEMENT
PROCEDURAL DUE PROCESS
 Full and fair investigation (on Controverted
matters!)
 Did the Company make a full and complete investigation
before a decision was made?
 Did the employee have the opportunity to tell his/her side
of the story?
 Did the Company interview witnesses suggested by the
employee before a decision was made?
 Did the Company reasonably consider the employee’s
side of the story?
162
CONSISTENCY & FAIRNESS
 What was the discipline issued to other
employees who engaged in the same rule/policy
violation, misbehavior or poor performance?
 Does the discipline in this case match the
discipline in cases of other misbehavior,
rule/policy violations, or performance problems of
similar severity?
163
3RD ELEMENT
MITIGATING CIRCUMSTANCES
 Length of service.
 Previous disciplinary history.
 Previous counseling.
 Previous performance evaluations.
 Seriousness of offense.
 Cooperation of employee.
 One-time violation v. course of conduct.
 Problems in personal life.
164
Disciplinary Actions
 What is the supervisor’s role?
Before Issuing Discipline
Conduct an Investigation
That includes:
1.
Get Human Resources involved immediately!
166
Before Issuing Discipline (continued)
2.
Participate with Human Resources in the
following:
a) Get the Employee’s side of the issue
• Listen to the employee carefully
• Document exactly what was said
 Get written statement, if possible
 Create accurate historical record
 Documentation helps to prevent later
fabrication
167
Before Issuing Discipline
(continued)
b)
Talk to all other relevant witnesses and
obtain statements
c)
Prepare investigation report
168
Preparation of
Report/Recommendation
 Consider the following facts in making a
determination:
 Ensure the employee’s





misconduct/performance/behavior is supported by
facts
Obtain necessary documentation
Mitigating circumstances?
Is employee aware of what Company expects?
Consistency of application
Prior work / disciplinary history
169
Length of Investigation
 Depends on Nature and Complexity of
the Violation
 Normally within 5 working days unless
circumstances dictate otherwise.
170
Progressive Discipline
• Appropriate in some instances, particularly for
performance/attendance issues.
• Advantages are:
• Assures Due Process
• Gives employee extra chance (“salvage employee”)
• Adequately warns employee
171
Progressive Discipline
Factors in determining which corrective action
to use:
1. Seriousness of the offense
2. Corrective Action History of employee
172
Issuance of Discipline
 If discipline is warranted, make certain
that it is given with a witness present.
173
Warning the Employee
What a Warning Should Contain:
 Specific examples of shortcomings or infractions
 A clear understanding of the consequences
 Specific recommendations to correct
performance
 A positive attitude from management
174
WRITTEN WARNING
Date: ________________
It was reported to me that you are not doing your share of
the work in the department. I realize that we all get slower
with age and that you have had several health problems.
However, you need to do your share of the work and not
assign it to the younger employees. If your performance
does not improve, we will need to talk again.
Signed:
I. M. Clueless
Supervisor
175
WRITTEN WARNING
Date: __________
I have observed that you are not processing amount of
pipe expected by us. It is important that you improve your
performance in this area, since it places a burden on other
employees when your performance is below expectations.
If your performance does not improve in 30 days, we will
have to terminate your employment.
Signed:______________________
Supervisor
176
ANY DISCIPLINARY
DISCUSSION MUST BE
DONE
WITH RESPECT!
177
Disciplinary Discussions
•
Make sure you seek a commitment
for improvement
•
•
State your expectations clearly
Request and obtain employee’s
cooperation
178
Making Documentation Effective
 Do promptly while memories are fresh
 Focus on important incidents and behaviors
 Establish internal system to check for
consistency - Keep a Log!
179
Making Documentation Effective
 Focus on job-related standards and
behaviors
 Reflect good faith attempts to salvage
the employee
 Take action to bridge past warnings
180
FINAL WARNING
State specific conduct giving rise to
discipline.
 Reference previous counselings and
discipline.
 Warn next action will be termination.
181
TERMINATION
 Always suspend pending decision on
termination.
 Reference prior counseling and
discipline.
 State specific conduct giving rise to
termination.
 Articulate legitimate non-discriminatory
reason for termination.
182
REMEMBER!
UNLESS IT IS
DOCUMENTED,
IT DID NOT HAPPEN
183
Steps of Insubordination
1. Order given
-
Clear
Concise
Direct
2. Repeat the order
-
Clear
Concise
Direct
Warning of discipline
3. Ask for explanation – communicate – Why?
184
Steps of Insubordination (continued)
4. Repeat the order (Get a management witness)
-
-
Clear
Concise
Direct
Warning of discipline
5. Place on Administrative Leave.
6. Discipline and document the same
185