CENTRAL WASHINGTON UNIVERISTY
Central Washington University
SUPERVISOR ENRICHMENT
PROGRAM
Facilitated by:
Cheryl Hintz Middleton, Esq.
ProACT Law Group, PLLC
1501 N. 200th Avenue, Suite 103
Shoreline, WA 98133
cmiddleton@proactlaw.com
(206) 546-3800
This training is provided by CWU Human Resources,
Equal Opportunity & Professional Development
located in Bouillon Hall 205
Gail Farmer
Veronica Gomez-Vilchis
Administrator
Program Specialist
963-2206
963-2205
farmer@cwu.edu
gomezv@cwu.edu
For more professional development opportunities visit our website at
www.cwu.edu/hr
ProACT Law Group, PLLC © 2013
Page 2
TABLE OF CONTENTS
1. Roles and Responsibilities
a. The Role of the Supervisor
b. The Legal Landscape
c. Labor Relations
2. Performance Management
a. Development and Coaching
b. Corrective Action and Discipline
c. The PDP
d. Motivate and Inspire
3. Recruitment and Selection
a. Interview Questions
b. Select the Best Candidate
4. Compensation Practices
a. Overview
b. The Exemptions
ProACT Law Group, PLLC © 2013
Page 3
Roles and Responsibilities
What hats do supervisors wear?
What is your role as supervisor?
The 360° Supervisor
Direct Reports
and Peers
Peers and
Upper
Management
Internal and
External Clients
Managing expectations:
• supervising friends
• more experienced workers
• less experienced workers
• new hires
ProACT Law Group, PLLC © 2013
Page 4
Roles and Responsibilities
Tips for Supervisors:
• don’t always take charge
• delegate and follow up
• you don’t need all the answers; just the questions
• allow your team the opportunity to learn and
grow
• be accessible and approachable
• communicate not just the WHAT that needs to be
done but the WHY
• don’t set up “us and them” mentality
• set clear expectations
• model appropriate behavior
• correct issues, don’t avoid them
• encourage, recognize and promote
• communicate ideas from the team upward
ProACT Law Group, PLLC © 2013
Page 5
Roles and Responsibilities
Traditional vs. Relational Management
Traditional Approach
1. Identify issues to be addressed;
2. Explain rules clearly;
3. Explain consequences of breaking rules;
4. Offer solutions; and
5. Direct employee to comply.
Relational Approach
1. Create relationship with employee;
2. Clearly present issue;
3. Gather information re the worker’s
perspective;
4. Engage in problem solving together; and
5. Help employee commit to action plan.
ProACT Law Group, PLLC © 2013
Page 6
Roles and Responsibilities
A Review of the Protected Classes
Divide into groups of
3. You have 3
minutes to name the
protected classes.
GO!
What is the connection between Supervisory Decisions
and the Protected Classes?
ProACT Law Group, PLLC © 2013
Page 7
Roles and Responsibilities
Governing Law: What binds CWU supervisors?
Federal Law
Title IX (1972)
No person in the United States shall, on the basis of sex,
be excluded from participation in, be denied the benefits
of, or be subjected to discrimination under any education
program or activity receiving Federal financial assistance.
Title VII
According to Title VII, an employer may not “fail or refuse to hire
or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of” protected
class status.
Additionally, an employer may not “limit, segregate, or classify his
employees or applicants for employment in any way which would
deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an
employee, because of” protected class status.
•
•
•
•
Pregnancy Discrimination Act
National Labor Relations Act
Fair Labor Standards Act
Age Discrimination in Employment Act
ProACT Law Group, PLLC © 2013
Page 8
Roles and Responsibilities
Other Federal Law
The Americans with Disabilities Act and Amendments
(ADAAA) Title II and Title III
The Americans with Disabilities Act of 1990 (ADA) prohibits
discrimination and ensures equal opportunity for persons
with disabilities in employment, State and local
government services, public accommodations, commercial
facilities, and transportation.
The ADA defines an individual with a disability as one whom:
(1) has a physical or mental impairment that substantially
limits a major life activity,
(2) has a record or history of a substantially limiting
impairment, or
(3) is regarded or perceived by an employer as having a
substantially limiting impairment. (Reprinted from the United States
Equal Employment Opportunity website, Job Applicants and the Americans with
Disabilities Act. New Amendments to the ADA took affect January 1, 2009. (See
Appendix A.)
ProACT Law Group, PLLC © 2013
Page 9
Roles and Responsibilities
The Washington State Legal Landscape
Disability Law in Washington is much broader than the ADA:
Washington Law Against Discrimination (WLAD) defines
disability as a “sensory, mental or physical impairment”
that (1) is medically cognizable or diagnosable; (2) or
exists as a record or history; or (3) is perceived to exist
whether or not it exists in fact.
The term “impairment” specifically includes
physiological disorders or conditions, cosmetic disfigurement,
anatomical loss affecting particular body systems, mental,
developmental, traumatic, or physiological disorders including
cognitive limitation, organic brain syndrome, emotional or
mental illness, and specific learning disabilities.
In Washington, employers must accommodate
impairments known or shown through the interactive
process to in fact exist, and
(1) the impairment must substantially limit the person’s ability
to perform, apply or be considered for the job, or access to equal
benefits, privileges or terms or conditions of employment; or
(2) the employer is on notice of the existence of an impairment,
and medical documentation establishes a reasonable likelihood that
engaging in job functions without accommodation will aggravate
the impairment creating a substantially limiting effect.
ProACT Law Group, PLLC © 2013
Page 10
Roles and Responsibilities
More of the Local Legal Landscape
Applicable Merit System Laws (RCW 41.06)
Applicable Merit System Rules (WAC 357)
Other Statutes like RCW 49.60 and RCW 49.44
CWUP: Policies and Procedures
Collective Bargaining Agreements
Pattern and Practice?
Remember: A Message From President Gaudino
CWU is committed to an environment in which everyone is
treated with dignity and respect.
Therefore we must ensure that each member of our
community has the skills and knowledge to nurture an
environment that honors the rights of all.
We want CWU to be a diverse, student-centered school where
we pride ourselves on building the lives of our students.
ProACT Law Group, PLLC © 2013
Page 11
Roles and Responsibilities
The Legal Landscape: Theories of Discrimination
Harassment
Disparate Treatment
Disparate Impact
Glass Ceiling
Failure to Accommodate
Retaliation
Failure to Hire
ProACT Law Group, PLLC © 2013
Page 12
Roles and Responsibilities
An Overview of Labor Relations
The National Labor Relations Act: 1930’s
• Increased worker rights due to political climate of Great
Depression
• Unions gained right to bargain for workers in wages,
hours and working conditions
• Employees won right to organize, bargain collectively,
strike and picket
•National Labor Relations Board (NLRB) established to
investigate unfair labor practices, certify bargaining units
and supervise elections
• Delineated unfair labor practices for management
NLRA does not apply specifically to public employees,
but principles found throughout state laws.
ProACT Law Group, PLLC © 2013
Page 13
Roles and Responsibilities
An Overview of Labor Relations
Basic State Statutes and Administrative Bodies
• Public Employees Collective Bargaining Act (PECBA) found at
RCW 41.56 passed in 1975 gave public employees the right to
organize and choses representatives
• RCW 41.56.021 makes the PEBCA applicable to Employees of
Higher Education and contains exceptions to coverage
Department of Enterprise Services administers state
employment
Washington State Public Employment Relations
Commission PERC:
• It is the mission of the Public Employment Relations
Commission to prevent or minimize disruptions to public
services by the uniform, impartial, efficient and expert
resolution of labor-management disputes.
• PERC covers some higher education employees, State
Troopers, and City and County Government Employees
ProACT Law Group, PLLC © 2013
Page 14
Roles and Responsibilities
An Overview of Labor Relations
Basic State Statutes and Administrative Bodies
The Personnel Resources Board
• The Board hears appeals filed by civil service employees of the
state of Washington. The Board strives to adjudicate appeals in
a timely, efficient, and objective manner, ensuring the rights of
employees and management while protecting the interests of
the state's citizens.
•The Personnel Resources Board consists of three members
appointed by the Governor, subject to confirmation by the
Washington State Senate. The Board staff is comprised of two
employees who provide technical, administrative, and support
services under the direction of the State Human Resource
Director within the Office of Financial Management.
Chapter 41.06 of the Revised Code of Washington (RCW)
includes the statutory authority for the Board to adjudicate.
Title 357 of the Washington Administrative Code (WAC)
contains the administrative rules governing the appeals
process.
ProACT Law Group, PLLC © 2013
Page 15
Roles and Responsibilities
An Overview of Labor Relations
Basic State Statutes
• Chapter 28B.52 RCW Collective Bargaining -- Academic
Personnel in Community Colleges (Statute covering community
college and technical college faculty only.)
• Chapter 41.06 RCW State Civil Service Law (Selected
provisions of statute covering state civil service employees.)
• Chapter 41.56 RCW Public Employees Collective Bargaining
Act (Statute covering all local government and selected "state"
operations.)
• Chapter 41.58 RCW Public Employees Collective Bargaining
(Statute which created PERC and provides some general
authority and principles.)
• Chapter 41.59 RCW Educational Employment Relations Act
(Statute covering K-12 certificated employees only.)
• Chapter 41.76 RCW Higher Education Faculty Labor Relations
(Statute covering faculty labor relations in public four-year
institutions of higher education.)
• Chapter 41.80 RCW State Collective Bargaining
(Statute covering collective bargaining for state civil service
employees.)
ProACT Law Group, PLLC © 2013
Page 16
Roles and Responsibilities
An Overview of Labor Relations
General Management Rights include:
• Direct Work
• Control Staffing and Budget
• Discipline of Employees
• Make Workplace Changes That Do Not Affect Terms and
Conditions of Employment
UNFAIR Labor Practices Include:
• Interfere with, restrain, or coerce employees in the exercise
of their rights to organize, chose a representative or engage in
concerted activity
• Control, dominate or interfere with a bargaining
representative
• Discriminate against a state employee who has filed an unfair
labor practice charge
• Refuse to engage in collective bargaining negotiations.
KNOW YOUR CBAs! More specifics later…
ProACT Law Group, PLLC © 2013
Page 17
Performance Management
Coaching
Coaching is not corrective and does not involve the Appointing
Authority. What is coaching?
The Basic Success Equation:
Aptitude
+
Attitude
+
Available Resources
Know How
Drive
Tools
Skills
Confidence
Equipment
Ability
Enthusiasm
Time
Etc.
Etc.
Etc.
Determines how successful the employee will be!
A Manager’s Guide to Coaching, Emerson and Loehr, 2010
Which is most important?
ProACT Law Group, PLLC © 2013
Page 18
Performance Management
Coaching
_ _ _ _ _ _ _ _ matters most in Coaching!
What we know:
1. Improved attitude can compensate for deficiencies in Aptitude or
Resources.
2. A decrease in Aptitude or Resources often negatively affects
Attitude, which can further hinder the Level of Success.
3. But does a negative attitude decrease the level of Aptitude or
Resources?
So what does all that mean?
Employee Attitudes are influenced largely by their relationship with
their supervisors.
What do we call this? This is the Relational Approach to Management!
ProACT Law Group, PLLC © 2013
Page 19
Performance Management
Coaching
“But I don’t have time to do my job, let alone coach employees!”
Coaching IS your job! It must be accomplished through the lens of
CWU’s stated mission.
Ask yourself:
What has employee turnover been like in the last year?
Why do employees leave their jobs?
How much does it cost to replace an employee?
If you ever want to retire, chances are you will have to have a Gen X
(born between 1965 and 1980) or Gen Y (born between 1981 and 1995)
employee take over.
What matters to them?
ProACT Law Group, PLLC © 2013
Page 20
Performance Management
Coaching
Think of it this way:
Employees want to be developed. They look to their managers to do
that.
Employees will leave that manager if the need is not met (or if they
perceive they are treading water or going backward in professional
development).
Each time an employee leaves, poor managers cost CWU enormous
amounts of money.
Managers must develop employees as well as provide the basics:
Direction, Appreciation, Respect and Tools.
Development of employees does not happen unless the manager can
increase Aptitude and Attitude
Attitude is best developed through COACHING.
ProACT Law Group, PLLC © 2013
Page 21
Performance Management
Coaching
Recognize when coaching is most likely to work.
Employees need coaching when they are struggling with Attitude issues
like
1.
2.
3.
4.
5.
____________________________________
____________________________________
____________________________________
____________________________________
____________________________________
How can you recognize these?
ProACT Law Group, PLLC © 2013
Page 22
Performance Management
Coaching
Introspective Moment:
Think of your employees or colleagues.
List the issues they spend the most time struggling with:
Look at the list.
How many involve Aptitude? How many involve Tools?
How many involve interpersonal issues and Attitude? These are your
opportunities for coaching!
Now list at least one issue, interpersonal conflict, or stressful situation
you face at work that does not involve aptitude or tools. (No real
names please!)
ProACT Law Group, PLLC © 2013
Page 23
Performance Management
Coaching
A Coach is someone who:
Helps an employee
(Is concerned and want to see the
employee)
Reach higher levels
(be better in all areas of work)
of effectiveness
By creating a dialogue
(by asking questions, listening and
offering support)
That leads to Awareness
(and helps the employee discover for
self how her Attitude is hindering her
Level of Success so that)
And Action!
(the employee can do something
different to be more effective in all
areas of work.)
Coaching helps develop confidence, motivation and drive.
ProACT Law Group, PLLC © 2013
Page 24
Performance Management
Coaching
Coaches focus on Awareness and Action
Awareness and Action = Emotional Intelligence (EI)
Emotional intelligence is Awareness of one’s own thoughts and feelings
as well as the thoughts and feelings of others in order to take
appropriate action to meet the goal.
Both the Supervisor and the Employee need EI, but it starts with the
Supervisor.
In other words, you must know and manage
 Your own hot buttons and triggers
 The hot buttons and triggers of your employees
 And how and when you push them.
Awareness of what is hindering performance is crucial.
"The task of the leader is to get his people from where they are to where they have not been." — Henry
Kissinger
ProACT Law Group, PLLC © 2013
Page 25
Performance Management
Coaching
Most people know how to do their job; they just let Attitude get in the
way of performance.
Coaching allows the employee to identify what is getting in the way of
his or her Success, and design an action plan to fix it.
Common Reactions from Supervisors:
 It’s easier for me to just tell the employee what to do;
 I don’t trust this employee to know what to do;
 I don’t have time to help build awareness;
 I am a manager not a therapist; and
 It’s a waste of time!
"The greatest of faults, I should say, is to be conscious of none."
Thomas Carlyle
Yet most employees, if simply told what to do, will
 Become resentful;
 Adopt a worse Attitude;
 Just not do it; and
 Leave, along with their years of knowledge.
ProACT Law Group, PLLC © 2013
Page 26
Performance Management
Coaching
Is Coaching the Right Tool?
Is the issue Aptitude?
TEACH the Skill
Is the Issue Tools?
Find the RESOURCE
Is the issue Attitude?
COACH
(Confidence, Commitment,
Frustration, Enthusiasm, Focus?)
What if it’s none of the above?
All of the above?
ProACT Law Group, PLLC © 2013
Page 27
Performance Management
Coaching
Is the issue an outside factor? Outside factors include:
 Poor relations with a supervisor or other employee
 Changing market conditions or agency direction
 Lack of support or direction from (you) the supervisor?
If so, go through the questions again.
Does the employee have the resources available to deal with the
problem?
The Aptitude?
Is it Attitude?
Then COACH!
ProACT Law Group, PLLC © 2013
Page 28
Performance Management
Coaching
What if you don’t know what the issue is?
ASK!
An employee may give far too many details of a particular situation. If
the employee is stuck on giving you a blow by blow account of her
interaction with another employee, what should you do?
You don’t have to use the word “coaching” when speaking with an
employee. You can ask the employee if he would like to spend a few
minutes batting some ideas around, or talking about the situation to
figure out how to stop it from driving him crazy.
ProACT Law Group, PLLC © 2013
Page 29
Performance Management
Coaching
The Coaching Process
Is this a coachable situation?
If yes, Create Awareness that leads to Action
Awareness
ACTION
AWARENESS is created through DIOLOGUE. Supervisors must find out
what is really going on with the employee, situation or client. What
does the employee want to happen?
ACTION can only occur when the employee is aware of what needs to
happen and then identifies a PLAN -- what he or she will do to get
there.
What is the coach’s job?
What isn’t the coach’s job?
ProACT Law Group, PLLC © 2013
Page 30
Performance Management
Coaching
The best part about being a Coach is you don’t have to know the
answers…you only need to ask the right coaching questions!
Coaching questions open doors so the light can come through and the
employee can find a path. What kinds of questions are most effective
in coaching?
Good Questions
ProACT Law Group, PLLC © 2013
Not so Good Questions
Page 31
Performance Management
Step by Step Coaching
1.
Create Awareness
2.
Open the Dialogue to Discover Wants
3.
Assess Courses of Action
4.
Carve out the Plan
5.
Help the Employee Take Charge
AND AFFIRM OVER AND OVER!
Would you rather spend your time asking coaching questions or having
to come up with all the answers to solve all the issues and the concerns
of every employee?
Competent coaching cuts down on time spent on corrective and
disciplinary action, and results in happier, more motivated and
productive employees.
ProACT Law Group, PLLC © 2013
Page 32
Performance Management
Step by Step Coaching
Step 1: Create Awareness
At this stage, it is important to




Not offer solutions or try to fix it
Not be judgmental
Be curious and try to make it fun
Encourage the employee to step back and look at the
bigger picture
 Help the employee explore the underlying issues
Sample questions:
1. What is stopping you from dealing with the situation?
2. What is the consequence of not dealing with it?
3. What is the real reason you are having a hard time dealing
with this person or situation?
4. How is this situation out of line with what you want to
happen?
5. What worries you most about this?
6. So what is really going on?
7. In what ways are you the biggest obstacle?
8. What would you have to say no to in order to have the time
you need?
9. How does this situation manage you instead of you
managing it?
10. What is it about this that makes you lose sleep?
11. Which of your buttons are really getting pushed?
12. What might your blind spot be in the situation?
13. What is your gut telling you about the situation?
ProACT Law Group, PLLC © 2013
Page 33
Performance Management
Step by Step Coaching
Step 2: Open Dialogue to Discover Wants
At this stage, it is important to


Help the employee identify wants
Develop a vision for resolution
Sample questions:
1.
If this situation was resolved, what would be different at
work?
2. How do you want this to play out?
3. What would a real resolution look like?
4. What would it take to make you feel really successful in this
situation?
5. How would you like people to describe how you moved
forward in this situation?
6. If you could do anything you wanted to resolve this, what
would you do? What would it get you?
7. What do you value that you are not willing to compromise
to resolve this?
8. How would this have to play out for you to feel good about
your part in it?
9. What does success look like in this situation?
10. What qualities will you have to demonstrate to have this
turn out the way you want?
11. What other ideas do you have about what you want?
ProACT Law Group, PLLC © 2013
Page 34
Performance Management
Step by Step Coaching
Step 3: Assess Courses of Action
At this stage, it is important to
 Encourage possible solutions and choices
 Brainstorm ideas but not details
 Don’t move on until you have identified 3-5 good,
possible actions
Start by saying something like, “Sounds like you are off to a
great start already and you have a good idea of where you want
to go with this. Let’s talk about what that looks like.”
Sample questions:
1. What are some possible solutions?
2. What are angles to consider?
3. What is the easiest thing to do here? What if you do that?
What if you don’t?
4. What conversations do you need to have to get what you
want? What conversations haven’t you had that might be
helpful?
5. What might be another way to solve this?
6. What would happen if you chose that solution?
7. What have you tried so far that has (has not) worked?
8. What would be the hardest road to take?
9. What might get in the way of your solution?
10. What would this look like if it was easy and fun?
11. What solution do you want to avoid and why?
ProACT Law Group, PLLC © 2013
Page 35
Performance Management
Step by Step Coaching
Step 4: Carve out the Plan
At this stage, it is important to
 Help the employee develop a realistic plan
 Make sure the plan is doable
Start by saying something like, “You have identified some great
possibilities. How about we narrow it down to one and talk about how
to really make it happen?”
Then always ask these two questions:
Which solution gets you closest to what you want?
Which one do you think you should pursue?
Sample questions:
1. What is the most important part of the plan to execute?
2. Who else could you bring in to help execute the plan? What
would that person add?
3. What information don’t you have that you will need? Where
will you get it and from whom?
4. What do you need to know about your solution that you don’t
know already?
5. What are you going to do to start moving forward?
6. What ripples might your solution create? How will you deal
with them?
7. What worries you about your solution? How will you deal with
that?
8. How can you make this as easy as possible?
ProACT Law Group, PLLC © 2013
Page 36
Performance Management
Step by Step Coaching
Step 4: Carve out the Plan, Continued
9. How will you tell others about it?
10. How will you know it is a great success?
11. How will you get feedback? What will you do if the feedback
is less than positive? What will that tell you?
12. What is the first step?
13. In what ways does that get you what you want?
Remember to
 Keep asking until a clear plan emerges.
 Take notes.
 And AFFIRM along the way.
Affirming is the act of acknowledging what the employee says and
does, and offering support and validation during the coaching
process. It can be used anytime to inspire, encourage and
motivate!
Example:
I know this has been a stretch for you, and you have really
stepped up to the challenge. You are determined and persistent,
and it is paying off. Those are qualities of a good leader. Keep it
up!
Besides asking questions and listening, take notes. You will help hold
the employee accountable for the plan.
ProACT Law Group, PLLC © 2013
Page 37
Performance Management
Step by Step Coaching
Step 5: Help the Employee Take Charge
At this stage, it is important to
 Help the employee follow through and keep
commitments
 Have the employee identify how he will take charge of
the Action Plan, and how you can help
Sample questions:
1.
2.
3.
4.
5.
How will you ensure you stay on task?
How will you let me know your progress?
What should I do if I don’t see you taking action?
How will you motivate yourself to move forward?
At what stage do you tend to lose motivation? What will you
do to make sure that doesn’t happen?
6. What will you do if an obstacle you have not anticipated
comes up?
7. What resources do you need to be successful?
8. How can I best support/run defense for you?
9. How often and when should we check in together?
10. How will you know if you are successful?
11. What will you have to say no to in order to make this happen?
12. What is the best way I can motivate you?
13. Who else can you talk to who will help hold you accountable
to your plan?
End with: What will you do, by when, and how will I know?
ProACT Law Group, PLLC © 2013
Page 38
Performance Management
Coaching
Successful
Coaches









Rely on instinct
Believe the employee can succeed
Stay unattached but supportive
Keep asking questions
Don’t know the answer
Never try to fix it
Do follow up with the employee
Think fun, fun, fun!
Don’t move to action until sure the employee has a strong
awareness of the underlying issues.
 Affirm, Affirm, Affirm!
"You do not lead by hitting people over the head — that's assault, not
leadership."
— Dwight D. Eisenhower
GO COACH! YEAH TEAM!
ProACT Law Group, PLLC © 2013
Page 39
Performance Management
Coaching
Practice Makes Perfect
Think about the situation you identified on page 22 that you currently
face.
Find with a partner who is not in your department, or who will not be
able to identify the parties involved in your scenario.
Using the materials and questions on the previous pages, coach your
partner through to a solution. You will have adequate time to practice
so please do not rush!
Use the following page to take notes. STOP when the first person has
worked through all the steps.
Resist the urge to TELL your partner what to do. Coaches do not
comment, judge or direct! Let your partner steer the boat.
“Whatever course you decide upon, there is always someone to tell you
that you are wrong. There are always difficulties arising which tempt
you to believe that your critics are right. To map out a course of action
and follow it to an end requires courage.” Ralph Waldo Emerson
ProACT Law Group, PLLC © 2013
Page 40
Performance Management
Coach and Be Coached
Note Taking/Practice Page
ProACT Law Group, PLLC © 2013
Page 41
Performance Management
Coach and Be Coached
Note Taking/Practice Page
ProACT Law Group, PLLC © 2013
Page 42
Performance Management
Corrective Action
Coaching vs. Corrective Action – Counseling
A Coach
 Asks questions so the employee becomes aware of the
issue.
 Provides the environment that allows the employee to
explore solutions, decide unilaterally what needs to be done
and make a plan to accomplish it.
In Counseling
 The supervisor is aware of the issue needing correction
through some degree of fact gathering.
 The supervisor communicates the issue (facts) to the
employee.
 Through steps outlined below, the supervisor and the
employee reach an agreement as to how the employee will
correct the issue.
 The supervisor controls the conversation with employee
input used to develop the plan.
 A key element is the employee’s understanding of what the
employee must do to correct deficiencies, and a timetable in
which to correct.
KEEP JUST CAUSE IN MIND WHEN IMPLEMENTING
CORRECTIVE ACTION PLANS! MORE LATER…
ProACT Law Group, PLLC © 2013
Page 43
Performance Management
Corrective Action
Is it legal? Is it smart?
 While Just Cause principles must be applied to disciplinary
situations, it is never a bad idea to follow those same principles
when asking an employee to correct.
 Corrective Action is typically p r o g r e s s i v e .
 Document FACTS not conclusions, opinions, or judgments
 Be aware of double j e o p a r d y .
 Discover the facts before you correct
 Make sure you PLAN the Corrective Action. Be Prepared.
What role does confidentiality play?
What about the employee who wants to turn the corrective action
session into a discussion about another employee’s performance?
What other interesting or difficult situations might you encounter while
attempting to take corrective action?
ProACT Law Group, PLLC © 2013
Page 44
Performance Management
Corrective Action
Is a supervisor required to start at the lowest level of corrective action
and move up one step at a time?
Before Taking Corrective Action or Discipline, consider:
1. How long the employee has been in state service;
2. Whether mitigating or aggravating circumstances exist;
3. What past performance evaluations reflect;
4. Seriousness of incident, problem, issue;
5. Whether this is a first time or repeat offense;
6. Any corrective action taken previously;
7. Other employees who committed similar infractions and how they
were treated;
8. How the offending employee was made aware of the rule that
was violated;
9. Whether the employee understood the rule;
10. Whether the rule or order was reasonable;
11. If misconduct was investigated, were other similar investigations
of misconduct conducted in the same manner with the same
level of effort;
12. Who else needs to be made aware of the situation; and
13. Specific provisions of the CBA that might affect any action taken.
ProACT Law Group, PLLC © 2013
Page 45
Performance Management
Corrective Action
General Guidelines for Verbal Counseling
1. Determine if the rule, procedure or performance standard was
not known or understood;
2. Reaffirm the rule, procedure or performance standard;
3. Ask about the reason for the violation;
4. Explain why the issue must be corrected; and
5. Advise the employee that if not corrected, further corrective
action or discipline will occur up to and including termination.
DOCUMENT each of these minimum steps even if you are just
conducting a verbal counseling!
What else should your documentation include?
How long do you keep it? CWU’s record retention policy is….
Where do you keep it? WHAT ABOUT SUPERVISORY FILES???
ProACT Law Group, PLLC © 2013
Page 46
Performance Management
Corrective Action
General Guidelines for Written Counseling
• Counsel the employee regarding the applicable performance standard
and the reasons his/her performance is not meeting the standard.
Use facts not conclusions, judgments or opinions.
• Always measure an employee against the standard, not against other
employees!
• Explain the importance of correcting the deficiencies.
• Reset expectation and where that expectation is found. Always note
where the employee first learned of the expectation or standard to
be followed.
• State when the issue will be revisited, and what the consequence will
be for a failure to improve.
• Document!
• Invite the employee to respond in writing, and inform the employee
his/her comments will be included in the personnel file along with the
written counseling.
• Give the employee a copy of the written counseling memo.
• Have the employee sign it. Keep a copy in desk file and one in
personnel file.
Good management is the art of making problems so interesting and their
solutions so constructive that everyone wants to get to work and deal with them.
Paul Hawken
ProACT Law Group, PLLC © 2013
Page 47
Performance Management
Corrective Action
CORRECTIVE ACTION STEPS
1. Issue/Facts
Explain to the employee why you have called this meeting. Use
facts, not conclusions or labels to explain the behavior in need of
change.
2. Expectation
Show the employee the rule, policy or procedure his or her
behavior violated, and be sure to discuss when and where that
expectation was set or communicated to him previously.
3. Employee Input
Ask the employee to tell you her side of the story, or explain the
situation as she sees it. Allow the employee input into the conversation
and listen to the employee’s perspective. Be respectful and a good
listener. Do not get sidetracked by the employee who begins to talk
about the issues of other employees. Steer the conversation back with
as statement such as, “Just as I never discuss your performance issues
with other team members, it is not appropriate for me to discuss theirs
with you. We are here to talk openly and honestly about what is going
on with you.”
ProACT Law Group, PLLC © 2013
Page 48
Performance Management
Corrective Action
CORRECTIVE ACTION STEPS, Continued
4. Problem
Ask how the employee will comply with the expectation or solve
the problem or issue going forward. Document this in the Solve/Record
section. Employees who offer or design the solution are far more likely
to adhere to it. Make sure you mirror it back so you know you
understand how the employee will comply in the future.
5. Action Steps
Explain that you are giving the employee a verbal counseling; a
written reprimand, whatever, and you fully believe the employee will
correct.
Make a Contract: Since the employee is offering to do something
to correct, you should commit to the employee by offering something
in return. It should be something of value to the employee, like
reflecting the positive change on his or her next performance review, or
offering to get the employee the tools he believes he needs to get on
track. It can even be a schedule change or speaking to another
employee to get information to this employee earlier. Be creative but
be sure you follow through!
ProACT Law Group, PLLC © 2013
Page 49
Performance Management
Corrective Action
CORRECTIVE ACTION STEPS, Continued.
5. Action Steps, Continued.
Timetable: Have the employee tell you a reasonable time for her
to correct. It may be immediately; it may be next month. Use what
makes sense and schedule a time to revisit the issue so you, the
supervisor can give kudos to the employee who corrected! Ex: Let’s
meet 2 weeks from today to make sure we are both on track. Two
weeks from today I fully expect to be patting you on the back for a job
well-done!
6. Consequences
For Breach of Contract: You MUST tell the employee what the
consequence of his or her failure to correct will be. In other words,
provide a next step consequence. If the next step in the process is that
another violation of the rule could lead to discipline, up to and
including termination, you must say that!
A sample Performance Action Worksheet is provided. Use it as your
conversational guide! Feel free to rename it, or change it if necessary.
ProACT Law Group, PLLC © 2013
Page 50
Performance Management
Correct These Actions!
Everyone who's ever taken a shower has an idea. It's the person who gets out of
the shower, dries off and does something about it who makes a difference.
Nolan Bushnell
ProACT Law Group, PLLC © 2013
Page 51
Performance Management
Just Cause
Daugherty and the Original Language of the Seven Tests
What are the seven Just Cause Principles?
1.
NOTICE:
Did the Employer give to the employee forewarning or
foreknowledge of the possible or probable consequences of the
employee’s disciplinary conduct?
2. REASONABLE RULE OR ORDER:
Was the Employer’s rule or managerial order reasonably related
to: (a) the orderly, efficient, and safe operation of the Employer’s
business, and (b) the performance that the Employer might properly
expect of the employee?
3. INVESTIGATION:
Did the Employer, before administering the discipline to an
employee, make an effort to discover whether the employee did in fact
disobey a rule or order of management?
ProACT Law Group, PLLC © 2013
Page 52
Performance Management
Just Cause
Daugherty and the Original Language of the Seven Tests
4. FAIR INVESTIGATION:
Was the Employer’s investigation conducted fairly and
objectively?
5. PROOF:
At the investigation, did the judge obtain substantial evidence or
proof that the employee was guilty as charged?
6. EQUAL TREATMENT:
Has the Employer applied its rules, orders and penalties even
handedly and without discrimination to all employees?
7. PENALTY:
Was the degree of discipline administered by the Employer
reasonably related to (a) the seriousness of the employee’s proven
offense, and (b) the record of the employee in his service with the
employer?
ProACT Law Group, PLLC © 2013
Page 53
Performance Management
Just Cause
Investigation and Proof
 All Sides to the Dispute Must be Considered!
- Must the investigator talk to the grievant?
 Get the Reason: Do not brush off the explanation!
 Notice: Must be understandable (and understood),
specific, and in an acceptable form.
Full, Fair and Objective Investigations
 Talk to all material witnesses
 Always ask who else might corroborate the witness’s version of
events;
 Follow up with witnesses when needed.
 Obtain all Documentary, Physical, and Medical Evidence
 Ask what evidence is available to substantiate
witness’s
version of events;
 Know if proof problems exist.
The Timeliness Requirement
 Investigate before discipline;
 Lack of reaction to events later characterized as serious enough to
warrant discipline viewed with distrust.
ProACT Law Group, PLLC © 2013
Page 54
Performance Management
Just Cause
The OBJECTIVE requirement in the FAIR Investigation
For it to be objective, management must ensure as much available
evidence as possible is collected and that evidence is carefully
examined from the perspective of a disinterested third party.
Due Process – At a Minimum as Provided for in CBAs




Right to be informed of the charges
Right to confront accusers
Right to answer charges
Right to counsel (i.e., union representation)
Remedy for procedural due process violations = more likely to
overturn discipline when the employee’s interests have been
prejudiced in some way.
Other Constitutional Rights
4th Amendment: Right against unreasonable searches and seizures
5th Amendment: Right against self-incrimination in criminal matters
ProACT Law Group, PLLC © 2013
Page 55
Performance Management
Just Cause
What proof do you need according to the Personnel Resources
Board? You must be able to show:
1. whether the employee was aware of the expectations,
rules, or policies allegedly violated,
2. whether the employee was aware of the need to
comply with the rule or policy or to improve
performance,
3. whether the employee had an opportunity to
demonstrate compliance or improvement,
4. whether the discipline was imposed for good reason,
5. whether the disciplinary process and procedures
followed were appropriate, and
6. whether the sanction imposed was sufficient to
prevent recurrence, to deter others from similar
misconduct, and to maintain the integrity of the
program.
The Personnel Resources Board has commonly applied JUST
CAUSE to ALL disciplinary cases!
Oliver v. Employment Security Department, PRB Case No. R-DEMO
ProACT Law Group, PLLC © 2013
Page 56
Performance Management
Coach, Correct or Discipline?
Due Process is generally considered to mean the employee must be
given NOTICE of the charges against her and an opportunity to be heard
(to respond).
But remember, the following state employees are NOT necessarily
entitled to full due process rights:




Exempt from Civil Service (“at-will”)
WMS
Temporary
Probationary
CWU supervisors are generally able to conduct Coaching and
implement Corrective Action without running afoul of due process
rights, but only an Appointing Authority can discipline. Consult your
Collective Bargaining Agreements!
Corrective Action includes:
Verbal counseling
Verbal warning
Written warning
Corrective Action plan
(Performance Evaluation)
_______________________
Discipline Includes:
Demotion
Suspension
Reduction in Pay
Discharge
Oral Reprimand*
Written Reprimand*
* Some CBAs consider Oral and Written Reprimands to be discipline.
Supervisors do not need an Appointing Authority to do them, but Oral
Reprimands must be identified as such. Special JUST CAUSE language
may be needed! Consult with Human Resources!
ProACT Law Group, PLLC © 2013
Page 57
Performance Management
Investigate before Discipline
Must you conduct an investigation into alleged misconduct of a
represented employee before administering discipline?
Can you use the Performance Action Worksheet?
During any employee investigation, distinguish between:




Personal Knowledge
Inferences
Speculation
Opinion
● Differentiate what the witness was told by another or learned later.
● Remember the applicable standard of proof.
● Use IRAC to determine whether or not a rule was violated.
I
R
A
C
How we think shows through in how we act. Attitudes are mirrors of the mind.
They reflect thinking. David Joseph Schwartz
ProACT Law Group, PLLC © 2013
Page 58
Performance Management
Constitutional Considerations in Discipline
14th Amendment: Remember Just Cause Applies in discipline
cases, as do Weingarten and Garrity!
Weingarten Rights
Union representative or coworker may be present during an
investigative interview if the UNION employee reasonably believes the
investigation may lead to discipline;
• Applies only to unionized employees;
• Investigator under no duty to tell employee of right; and
• Union representative acts as observer, not participant.
The Garrity Rule
Applies in employee misconduct investigations;
• Investigator may not “compel” employee to disclose
information during an internal investigation that might later
be used to prosecute the employee;
• Cannot tell employee to confess or be terminated; and
• Evidence excluded in later proceeding if rule violated.
ProACT Law Group, PLLC © 2013
Page 59
Performance Management
Determining Discipline
Keep in mind the 6th and 7th Just Cause Tests:
6th Just Cause Test: Equal Treatment
Has the Employer applied its rules, orders and penalties even handedly
and without discrimination to all employees?
• Alexander v. Gardner-Denver Co., 415 U.S. 36, 7 FEP Cases 81
(1974)
• Were similarly situated employees treated alike?
• Who/What are the comparators?
7th Just Cause Test: Penalty
Was the degree of discipline administered by the Employer in a
particular case reasonably related to: (a) the seriousness of the
employer’s proven offense and (b) the record of the employee in his or
her service with the Employer?
• Penalty = punishment imposed for breach of rule
• Did the investigation uncover enough facts to support the penalty
imposed?
• Does penalty comport with provisions of the Collective Bargaining
Agreement?
ProACT Law Group, PLLC © 2013
Page 60
Performance Management
Discipline
When you discipline, be sure you
1. Follow the CBA if applicable
2. Review and use all you learned about Corrective Action
3. Understand what Just Cause requires
4. Are consistent
5. Are objective
6. Don’t get sidetracked by talking about other employees
7. Base the decision on performance, not protected classes
8. Focus on facts
9. Be able to articulate why the discipline was Legal and
Smart
10. Don’t retaliate
11. Get help from Human Resources
12. Consider the underlying reasons for performance issues. If
it might involve a disability, FMLA or frequent absences,
get help from Human Resources
13. Deal with dangerous, i.e., health and safety issues
immediately
14. Keep it confidential!
15. Comply with all deadlines and date requirements.
16. Document, document, document!
Obstacles are things a person sees when he takes his eyes off his goal.
E. Joseph Cossman
ProACT Law Group, PLLC © 2013
Page 61
Performance Management
Discipline
Supervisors beware!
RCW 41.06.196
Employee performance evaluations — Termination of
supervisors tolerating inadequate employee performance.
The director shall adopt rules designed to remove from
supervisory positions those supervisors who in violation of the
rules adopted under RCW 41.06.186 have tolerated the
continued employment of employees under their supervision
whose performance has warranted termination from state
employment.
[2002 c 354 § 216; 1993 c 281 § 33; 1985 c 461 § 6.]
ProACT Law Group, PLLC © 2013
Page 62
Performance Management
Discipline
WAC 296-126-050
Employment records.
(1) Every employer shall keep for at least three years a record
of the name, address, and occupation of each employee, dates
of employment, rate or rates of pay, amount paid each pay
period to each such employee and the hours worked.
(2) Every employer shall make the record described in
subsection (1) available to the employee, upon request, at any
reasonable time.
(3) Every employer shall, within ten business days of receiving
a written request by a former employee, furnish a signed
written statement stating the reasons for and effective date of
discharge.
Note: Additional recordkeeping requirements for employers are stated in WAC 296-128-010 through 296-128-030 (rules regarding
recordkeeping for employers subject to the Minimum Wage Act, chapter 49.46 RCW) and WAC 296-131-017 (rule regarding
recordkeeping for agricultural employers).
[Statutory Authority: Chapter 49.12 RCW. 10-04-092, § 296-126-050, filed 2/2/10, effective 3/15/10. Statutory Authority: RCW 43.22.270,
49.12.020, 49.12.091, 49.12.050, 49.46.020 and 49.46.070. 89-22-016 (Order 89-16), § 296-126-050, filed 10/24/89, effective 11/24/89; Order
74-9, § 296-126-050, filed 3/13/74, effective 4/15/74.]
The reasons stated must be the REAL reasons! Consult HR!!
ProACT Law Group, PLLC © 2013
Page 63
Performance Management
Discipline
RCW 49.44.010
Blacklisting — Penalty.
Every person in this state who shall willfully and maliciously, send or
deliver, or make or cause to be made, for the purpose of being
delivered or sent or part with the possession of any paper, letter or
writing, with or without name signed thereto, or signed with a fictitious
name, or with any letter, mark or other designation, or publish or cause
to be published any statement for the purpose of preventing any other
person from obtaining employment in this state or elsewhere, and
every person who shall willfully and maliciously "blacklist" or cause to
be "blacklisted" any person or persons … for the purpose of preventing
such person from securing employment, or who shall willfully and
maliciously make or issue any statement or paper that will tend to
influence or prejudice the mind of any employer against the person of
such person seeking employment, or any person who shall do any of
the things mentioned in this section for the purpose of causing the
discharge of any person employed … shall, on conviction thereof, be
adjudged guilty of misdemeanor and punished by a fine of not less than
one hundred dollars nor more than one thousand dollars, or by
imprisonment in the county jail for not less than ninety days nor more
than three hundred sixty-four days, or by both such fine and
imprisonment.
[2011 c 96 § 42; 1899 c 23 § 1; RRS § 7599.]
ProACT Law Group, PLLC © 2013
Page 64
Performance Management
The Performance Development Plan
The PDP
• the standardized performance form
• used for all civil service and exempt employees
• establishes key responsibilities and competencies
• sets performance expectations
• identifies training and development needs
• view as a “living document” to be updated
• copy of the initial PDP must be submitted to HR
for inclusion in employee’s personnel file
• 360° review optional; HR available to assist
• see sample PDP and 360° review forms and
instructions in Appendix A
• supervisors must develop a performance
management plan for civil service employees
during probationary, trial service, and transition
review periods, then annually thereafter
• exempt (from civil service) employees must be
assessed annually in June or July
ProACT Law Group, PLLC © 2013
Page 65
Performance Management
The Performance Development Plan
When creating the PDP, remember
• set clear expectations within CWU policies
• do not ignore performance issues
• evaluate against the job expectations, not the
performance of others
• document honestly and regularly
• communicate both positive feedback and
problems
• provide training opportunities
• identify challenges for each employee
• be aware of stereotypes and prejudices in the
evaluation of skills, knowledge and abilities
• evaluate on job related criteria
• do not over-praise; most employees meet
expectations
• focus on specific, objective goals
• document facts, not conclusions or opinions
• be fair, even-handed and consistent
ProACT Law Group, PLLC © 2013
Page 66
Performance Management
Employee Personnel Files
CWU Policy: An employee has the right to inspect, or
have his/her designated representative inspect, his/her
personnel file.
CWU Policy: An employee may also obtain a copy of
his/her personnel file from HR.
The right to access to personnel files is authorized by
• Contract Article 33- Employer Files for Classified Staff in
Bargaining Unit 1
• Contract Article 35- Personnel Files for Classified Staff in
Bargaining Units 3, 4, 5 and 6
• WAC 357-22-020 for non-represented Classified Staff
• RCW 49.12.240 permits employee inspections of
personnel files at least annually
• RCW 49.12.250 gives the employee the right to request
removal of “irrelevant or erroneous” information in the
file, and to place a rebuttal or correction in the file if the
information is not removed
• RCW 49.12. 240 and 250 do not apply to records of an
employee relating to investigation of criminal offense
ProACT Law Group, PLLC © 2013
Page 67
Performance Management
Inspire and Motivate!
Study after study, and book after book, tout the message that
motivating by FEAR is the WORST approach.
How can you tell if you are using FEAR as a motivator?
1. Do my employees look happy to see me?
2. Do my employees smile most of the time?
3. Do my employees make eye contact with me?
4. Do I feel my employees have my best interest at heart? Do
they have my back?
If you answered no, your team is underachieving. Period. Make sure
you turn out the lights. You will be the last person to leave. Fear based
management doesn’t work.
“I've learned that people will forget what you said, people will forget what you
did, but people will never forget how you made them feel.” Maya Angelou
ProACT Law Group, PLLC © 2013
Page 68
Performance Management
Inspire and Motivate!
A Clear Message to Senior Management:
The bad news: You are part of the problem why your employees
are not performing at peak levels.
The good news: You are key to the solution!
A Global Workplace Study by Tower Perrin that included nearly 90,000
employees from 18 countries confirmed that the single most important
driver of employee discretionary effort is “senior management’s sincere
interest in employee well-being.”
Three things Senior Management must do to significantly increase
levels of discretionary effort by employees:
1. Communicate openly and honestly
1. Be visible and accessible
2. Show support for new ideas.
Senior management functions as role models, particularly when it
comes to allowing employees to communicate input and ideas freely
and without fear of retribution. Open communication and visibility are
KEY.
The result of fear-based management is a workplace replete with
employees who cannot find work elsewhere. Good employees leave,
and go where they feel valued.
Instant Turnaround!, Harry Paul and Ross Reck, Ph.D, 2009
ProACT Law Group, PLLC © 2013
Page 69
Performance Management
A Word about Leadership
"The respect that leadership must have requires that one's ethics be
without question. A leader not only stays above the line between right
and wrong, he stays well clear of the gray areas."
— G. Alan Bernard
President, Mid Park, Inc
Basic Truisms about Supervisors:
Employees perceive your position of power to be greater than you think.
The stronger your statement + the higher your position = the bigger the impact,
both good and bad.
Managers who are good Leaders provide four basic things for employees Direction
Appreciation
Respect and
Tools to do the job.
What you consider adequate Direction, Appreciation, Respect and Tools to do the
job may not be adequate in the eyes of your employees.
From Winning with the Employee from Hell, Shaun Belding, 2004
ProACT Law Group, PLLC © 2013
Page 70
Performance Management
Inspire and Motivate!
So what works?
Coaching. Open dialogue where employees feel free to grow, explore
and create solutions without being told how, what and when to do
something.
A real TEAM approach. Don’t call them your “TEAM” unless you are
willing to listen and take input from them. Do not drop bombshell
announcements or decisions on individuals or the team before they
have had time to get excited about the change, or at least understand
the reasons for change.
Fierce Conversations. Identify the gaps between CWU’s stated goals
and expectations for employees and what is REALLY going on. Don’t
bury your head in the sand. Fix it!
Motivate individually. Ask what motivates each employee. Just
because two people are the same age, gender, race, religion, whatever
does NOT mean the same things motivate each. Respect the individual
and take the time to learn what motivates each of your employees!
Day to Day Recognition. It must be is Frequent, Specific and Timely as
outlined in The Carrot Principle, Adrian Gostick and Chester Elton, 2007.
Be a Good Role Model. If you cut corners, employees will follow suit.
If you ignore problems, your employees will do the same. But if you
make it clear you take CWU’s mission seriously, so will your employees.
If quality and managing risk matter to you, they will matter to your
employees. Practice what you preach!
ProACT Law Group, PLLC © 2013
Page 71
RECRUITMENT AND SELECTION
HIRE WITH PURPOSE!
The Big Picture… Wait! What is the Big Picture?
What makes a “good” hire?
A “not so good” hire?
Be able to identify the goal of each hire. If you don’t know
what you want, you don’t know what you will get!
Always Think: Is it legal? Is it smart?
“If you think hiring professionals is expensive, try hiring
amateurs.” Thinkexist.com
Managing Expectations Matters! “Organ Rejection*” Theory
What is meant by cultural fit? Can you consider subjective
criteria?
* “Organ rejection” is a term coined by Eric Herrenkohl in his
2010 book “How to Hire A-Players.”
ProACT Law Group, PLLC © 2013
Page 72
RECRUITMENT AND SELECTION
WSHRC PRE-EMPLOYMENT ADVERTISING GUIDELINES
Language advertising a job opening should describe the job in
gender neutral terms. WAC 162.16.260
Policeman =
_____________
Repairman =
_____________
Language advertising a job opening must also contain nondiscriminatory terms or terms that do not suggest a preference for a
protected group:
Clean cut
(revise to) _____________
Recent grad/ college student (revise to) _____________
What protected classes might these terms imply?
Can you use the term “Equal Opportunity Employer” or indicate you
encourage workplace diversity? See WAC 162-16-290.
ProACT Law Group, PLLC © 2013
Page 73
RECRUITMENT AND SELECTION
PRE-EMPLOYMENT ASSESSMENTS AND TESTING
Note: All assessment tools used to make employment decisions,
regardless of their format, level of standardization, or objectivity, are
subject to professional and legal standards. For example, both the
evaluation of a resume and the use of a highly standardized
achievement test must comply with applicable laws. Assessment tools,
used solely for career exploration or counseling, are usually not held to
the same legal standards.
Resource: Contact the Department of Enterprise Services for assistance
and information on where to turn for help when designing legal and
smart assessment tools, especially if your agency does not have an
internal recruiting personnel or human resources.
Resource: Information regarding organizations involved with personnel
assessment can be found at the International Personnel Management
Association (IPMA) sites: www.ipmaac.org/ and www.ipma-hr.org/
Resource: The Occupational Information Network (or O*NET;
www.doleta.gov/programs/onet/ and www.onetcenter.org/) is the
nation’s primary source for occupational exploration and information.
O*NET provides comprehensive information on job requirements and
worker competencies for over 1100 occupations. This Guide (Testing
and Assessment: An Employer's Guide to Good Practices), as well as
other guides in this series are available for downloading from the above
Web sites. The testing and assessment guide has links to all major
legislation prior to 2000.
ProACT Law Group, PLLC © 2013
Page 74
RECRUITMENT AND SELECTION
PRE-EMPLOYMENT INQUIRY GUIDELINES
WAC 160-12-140 sets forth what can and cannot be asked preemployment. These rules apply to:
• Job application forms
• Pre-employment interviews
• Any other type of inquiry made of job applicants
• Inquiries made to persons other than an applicant
• Inquiries made by third parties (Ex: credit reporting service)
Exceptions:
Bona fide occupational qualifications (BFOQ);
A voluntary affirmative action plan that meets
certain guidelines (ex: WAC 162-12-160); or
Required by federal law (see WAC 162-12-150).
The rules do not apply after a person is employed. See WAC
162-12-180.
ProACT Law Group, PLLC © 2013
Page 75
RECRUITMENT AND SELECTION
PRE-EMPLOYMENT INQUIRY GUIDELINES
(Reprinted from WSHRC Website)
WAC 162-12-140 (3)
The following examples of fair and unfair pre-employment inquiries
define what is an unfair practice under RCW 49.60.180(4) and
49.60.200. These examples, however, are not all inclusive. All preemployment inquiries that unnecessarily elicit the protected status of a
job applicant are prohibited by these statutes irrespective of whether
or not the particular inquiry is covered in this regulation.
SUBJECT
a. Age
FAIR
UNFAIR
PREEMPLOYMENT INQUIRES PREEMPLOYMENT
INQUIRES
Inquiries as to birth date and
proof of true age are permitted
by RCW 49.44.090.
Any inquiry not in compliance
with RCW 49.44.090 that
implies a preference for
persons under 40 years of
age.
(For age discrimination, RCW 49.44.090 must be read in conjunction with RCW
49.60.180 and 49.60.200. RCW 49.44.090 limits age discrimination coverage to
persons 40 years of age and older, and makes other limitations and exceptions to
the age discrimination law.)
ProACT Law Group, PLLC © 2013
Page 76
SUBJECT
b. Arrests
(see also
Convictions)
FAIR
UNFAIR
PREEMPLOYMENT INQUIRES PREEMPLOYMENT
INQUIRES
Because statistical studies
Any inquiry that does not
regarding arrests have shown a
meet the requirements for fair
disparate impact on some racial
pre-employment inquiries.
and ethnic minorities, and an
arrest by itself is not a reliable
indication of criminal behavior,
inquiries concerning arrests must
include whether charges are still
pending, have been dismissed, or
led to conviction of a crime
involving behavior that would
adversely affect job performance,
and the arrest occurred within
the last ten years. Exempt from
this rule are law enforcement
agencies and state agencies,
school districts, businesses and
other organizations that have a
direct responsibility for the
supervision, care, or treatment of
children, mentally ill persons,
developmentally disabled
persons, or other vulnerable
adults. See RCW 43.20A.710;
43.43.830 through43.43.842 ; and
RCW 72.23.035.
ProACT Law Group, PLLC © 2013
Page 77
SUBJECT
FAIR
UNFAIR
PREEMPLOYMENT INQUIRES PREEMPLOYMENT
INQUIRES
c. Citizenship
Whether applicant is prevented
from lawfully becoming
employed in this country because
of visa or immigration status.
Whether applicant can provide
proof of a legal right to work in
the United States after hire.
Whether applicant is citizen.
Requirement before job offer
that applicant present birth
certificate, naturalization or
baptismal divulge applicant's
lineage, ancestry, national
origin, descent, or birth place.
d. Convictions
(see also
Arrests)
Statistical studies on convictions
and imprisonment have shown a
disparate impact on some racial
and ethnic minority groups.
Inquiries concerning convictions
(or imprisonment) will be
considered to be justified by
business necessity if the crimes
inquired about relate reasonably
to the job duties, and if such
convictions (or release from
prison) occurred within the last
ten years. Law enforcement
agencies, state agencies, school
districts, businesses and other
organizations that have a direct
responsibility for the supervision,
care, or treatment of children,
mentally ill persons,
Inquiries concerning
convictions and imprisonment
which either do not relate
reasonably to job duties or did
not occur within the last ten
years will not be considered
justified by business
necessity.
ProACT Law Group, PLLC © 2013
Page 78
SUBJECT
FAIR
UNFAIR
PREEMPLOYMENT INQUIRES PREEMPLOYMENT
INQUIRES
d. (continued)
developmentally disabled
persons, or other vulnerable
adults are exempt from this rule.
See RCW 43.20A.710;43.43.830
through43.43.842 ; and RCW
72.23.035.
e. Family
Whether applicant can meet
specified work schedules or has
activities, commitments or
responsibilities that may prevent
him or her from meeting work
attendance requirements.
Specific inquiries concerning
spouse, spouse's employment
or salary, children, child care
arrangements, or
dependents.
f. Disability
Whether applicant is able to
perform the essential functions of
the job for which the applicant is
applying, with or without
reasonable accommodation.
Inquiries as to how the applicant
could demonstrate or describe
the performance of these specific
job functions with or without
reasonable accommodation.
Note: Employers are encouraged
to include a statement on the
application form apprising
Inquiries about the nature,
severity or extent of a
disability or whether the
applicant requires reasonable
accommodation prior to a
conditional job offer. Whether
applicant has applied for or
received worker's
compensation. Also any
inquiry that is not job related
or consistent with business
necessity.
ProACT Law Group, PLLC © 2013
Page 79
SUBJECT
FAIR
UNFAIR
PREEMPLOYMENT INQUIRES PREEMPLOYMENT
INQUIRES
f. (continued)
applicants that if they require
accommodation to complete the
application, testing or interview
process, to please contact the
employment office, personnel or
human resources department or
other office as may be able to
assist them.
g. Height and
Weight
Being of a certain height or
weight will not be considered to
be a job requirement unless the
employer can show that all or
substantially all employees who
fail to meet the requirement
would be unable to perform the
job in question with reasonable
safety and efficiency.
h. Marital
None.
Status (see also
Name and
Family)
ProACT Law Group, PLLC © 2013
Any inquiry which is not based
on actual job requirements
and not consistent with
business necessity.
( ) Mr.
( ) Mrs.
( ) Miss
( ) Ms.
Whether the applicant is
married, single, divorced,
separated, engaged, widowed,
etc.
Page 80
SUBJECT
FAIR
UNFAIR
PREEMPLOYMENT INQUIRES PREEMPLOYMENT
INQUIRES
i. Military
Inquiries concerning education,
training, or work experience in
the armed forces of the United
States.
Type or condition of military
discharge. Applicant's
experience in military other
than U.S. armed forces.
Request for discharge papers.
j. Name
Whether applicant has worked
for this company or another
employer under a different name
and, if so, what name. Name
under which applicant is known
to references if different from
present name.
Inquiry into original name
where it has been changed by
court order or marriage.
Inquiries about a name that
would divulge marital status,
lineage, ancestry, national
origin or descent.
k. National
Origin
Inquiries into applicant's ability to
read, write and speak foreign
languages, when such inquiries
are based on job requirements.
Inquiries into applicant's
lineage, ancestry, national
origin, descent, birthplace, or
mother tongue. National
origin of applicant's parents or
spouse.
l.
Organizations
Inquiry into organization
memberships, excluding any
organization the name or
character of which indicates the
race, color, creed, sex, marital
status, religion, or national origin
Requirement that applicant
list all organizations, clubs,
societies, and lodges to which
he or she belongs.
ProACT Law Group, PLLC © 2013
Page 81
SUBJECT
FAIR
UNFAIR
PREEMPLOYMENT INQUIRES PREEMPLOYMENT
INQUIRES
l. (continued)
or ancestry of its members.
m.
Photographs
May be requested after hiring for
identification purposes.
Request that applicant submit
a photograph, mandatorily or
optionally, at any time before
hiring.
n. Pregnancy
(see also
Disability)
Inquiries as to duration of stay on
job or anticipated absences which
are made to males and females
alike.
All questions as to pregnancy,
and medical history
concerning pregnancy and
related matters.
o. Race or
Color
None. See WAC 162-12-150, 16212-160, and 162-12-170.
Any inquiry concerning race or
color of skin, hair, eyes, etc.,
not specifically permitted by
WAC 162-12-150, 162-12-160,
and 162-12-170.
p. Relatives
Name of applicant's relatives
already employed by this
company or by any competitor.
Any other inquiry regarding
marital status, identity of
one’s spouse, or spouse’s
occupation is considered
unfair practices in accordance
with WAC 162-12-150.
(While the law does not prohibit company policies governing the employment of
relatives, any policy that has the effect of disadvantaging minorities, women,
ProACT Law Group, PLLC © 2013
Page 82
married couples, or other protected classes, would be in violation of the law unless
it is shown to serve a necessary business purpose.) See WAC 162-12-150, 162-12160, and 162-12-170.
q. Religion or
Creed
None.
Inquiries concerning
applicant's religious
preference, denomination,
religious affiliations, church,
parish, pastor, or religious
holidays observed.
r. Residence
Inquiries about address to the
extent needed to facilitate
contacting the applicant.
Names or relationship of
persons with whom applicant
resides. Whether applicant
owns or rents own home.
s. Sex
None.
Any inquiry concerning gender
is prohibited.
[Statutory Authority: RCW 49.60.120(3). 00-01-177, § 162-12-140, filed 12/21/99, effective 1/21/00; 96-21-054, § 162-12-140, filed 10/14/96, effective
11/14/96; Order 19, § 162-12-140, filed 1/20/75; Order 18, § 162-12-140, filed 1/20/75; Order 16, § 162-12-140, filed 5/22/74; Order 9, § 162-12-140,
filed 9/23/71; Order 8, § 162-12-140, filed 6/22/70; § 162-12-140 and chart, filed 10/23/67.]
ProACT Law Group, PLLC © 2013
Page 83
RECRUITMENT AND SELECTION
ASK QUESTIONS THAT ELICIT INFORMATION!
Resource: Some amazing questions come from a book that was
published 2009 called: 96 Great Interview Questions to Ask
Before You Hire, by Paul Falcone
Setting up an effective Reference Check.
The best indicator of future performance is _______________.
How then, do you get a candidate to give you information for a
fabulous reference check?
The gold mine: The candidate tells you of a past
accomplishment. You respond, “Tell me more!” The candidate
continues with details that are positively glowing.
Now what?
Do I need permission in writing? How do I get it?
What is the million dollar reference check question?
A rule of thumb: Only ask questions of references that you
have asked the candidate. Keep it job related.
ProACT Law Group, PLLC © 2013
Page 84
RECRUITMENT AND SELECTION
Failure to Hire Claims
Proving a Failure to Hire Claim
Step 1: Generally, Plaintiff Must Show:
1)
2)
3)
4)
He/She is member of a Protected Class;
Applied for and was Qualified for the Job;
Was Not Hired; and
The Job Remained Open or a Person Outside the
Protected Class was Hired instead.
Food for Thought…
Rate the importance of
1. Accurate recruiting advertisements
2. Accurate position descriptions
3. What is said by everyone in an interview
4. Interview notes
5. Knowing what you want in an applicant
6. Scoring applicant responses
What role does public disclosure play in hiring?
ProACT Law Group, PLLC © 2013
Page 85
RECRUITMENT AND SELECTION
Failure to Hire Claims
THE LEGAL LANDMINES
Step 2: Once the Plaintiff sets forth a Prima Facie Case, the
Agency must articulate Legitimate, Non-Discriminatory
Business Reasons for its action (or inaction).
What is a “legitimate business reason?”
Is that the end of the story? NO!
Step 3: The Plaintiff has one more chance to prove
discrimination in hiring by showing that the University’s
Legitimate, Non-Discriminatory Business Reasons are PRETEXT
(i.e., not true or believable).
What evidence might an unsuccessful candidate put forth to
show pretext?
The Key: Keep Decisions JOB-RELATED!
And if you are not sure whether an action you are about to take in the
hiring process may present a problem in the future, ASK! Human
Resources, Agency Recruiting Staff, your AAG, and Supervisors are
there to assist you!
ProACT Law Group, PLLC © 2013
Page 86
COMPENSATION PRACTICES
Overview of Wage and Hour Law
FEDERAL: Fair Labor Standards Act (FLSA)
• Established in 1938
• Sets minimum wage, overtime standards, working
conditions, recordkeeping, requirements, and child
labor laws for those covered by the FLSA
• Garcia v. San Antonio Metro. Transit Authority, 1985,
made clear public employees are covered by the FLSA
• FLSA is administered by the U.S. Department of Labor.
• Original purpose was to stimulate economic recovery
post Great Depression and protect workers
• Employees may be exempt from the overtime
provisions of the FLSA (and state law) if they meet the
criteria set forth for Executive, Administrative,
Professional and Computer exemptions.
Note the term “exempt” under the FLSA is different from
the term “exempt” from civil service!
ProACT Law Group, PLLC © 2013
Page 87
COMPENSATION PRACTICES
Overview of Wage and Hour Law
State Wage and Hour Law
• The Washington Minimum Wage Act (WMWA) was
passed in 1959 and the state counterpart to the FLSA
• WMWA is found at RCW 49.46 and also sets the state’s
minimum wage requirements and other rules pertaining
to overtime, penalties for violating WMWA, etc.
• RCW 49.46 is enforced by the state Department of Labor
and Industries
• Washington Administrative Code also contains many
wage and hour regulations.
• Current Washington State minimum wage is $9.19 per
hour
Where federal and state law differs, the institution must
comply with the law most favorable to the employee!
ProACT Law Group, PLLC © 2013
Page 88
COMPENSATION PRACTICES
Overview of Wage and Hour Law
University (Public Sector) Terminology
• “Exceptions” employees are those exempt from
overtime pay. Exceptions = FLSA overtime exempt
• “Exempt” employees are those exempt from civil
service. Do not confuse FLSA/WMWA exempt with
civil service exempt!
• “Scheduled” employees are those who receive
overtime after a scheduled shift or after 40 hours per
week.
• “Non-scheduled” employees receive overtime after
40 hours per week.
• Overtime must be paid at a rate of 1.5 times the
employee’s hourly rate
• Overtime must be paid for all hours “suffered or
permitted” to work
• Overtime may be “paid” in “compensatory time” in
public sector. Comp time = 1.5 hours per hour of
overtime worked
• An employee relationship must exist to pay overtime
ProACT Law Group, PLLC © 2013
Page 89
COMPENSATION PRACTICES
Overview of Wage and Hour Law
Executive, Administrative, Professional and Computer
Professional (“EAPC”) Exemptions from Overtime
• Public employees directly employed by institution
of higher education must be paid on a salary basis.
• Employee must regularly receive for each pay
period of one week or longer a predetermined
monetary amount consisting of all or part of his or
her compensation
• The salary cannot be subject to deductions because
of variations in the quantity or quality of work
performed
• Salary cannot fall below the amount required in
WAC 296-128-510, WAC 296-128-520, WAC 296128-530, and WAC 296-128-535
• Deductions from pay tend to destroy the salary
basis test (WAC 296-128-533)
• Public employers may deduct from leave banks in
increments less than one hour
• Deductions for major safety violations permissible
ProACT Law Group, PLLC © 2013
Page 90
COMPENSATION PRACTICES
“EAPC” Exemptions from Overtime: Primary Duties
• Quality of work must also meet “primary duties”
tests; 80/20 rule generally applies
• All must use independent judgment and discretion
• Combination exemptions exist
• Executive must regularly supervise 2 or more
employees and primary duty is management of the
institution, a department or a subdivision. Power
to hire, fire or make recommendations that carry
substantial weight
• Administrative employee must perform nonmanual or office work directly related to
management policies or University operations.
• Professional exemption applies to those with
advanced learning acquired by prolonged or
specialized intellectual instruction, or teaching,
tutoring, instructing or lecturing for school system
or educational institution
• Computer Professional must be highly skilled but
no degree required.
ProACT Law Group, PLLC © 2013
Page 91
COMPENSATION PRACTICES
Practice Pitfalls
Beware of FLSA/WMWA complaints!
Under the FLSA and RCW 49.46.100, any employer who
discharges or discriminates against an employee for
complaining about payment of wages or any violation of
the federal or state Acts
• is guilty of a gross misdemeanor,
• may be subject to treble damages for unpaid wages,
and
• may be liable for retaliation damages.
ProACT Law Group, PLLC © 2013
Page 92
Parking Lot
ProACT Law Group, PLLC © 2013
Page 93
ProACT Law Group, PLLC © 2013
Page 94
ProACT Law Group, PLLC © 2013
Page 95