Addressing Employee Performance Issues without Running Afoul of the Law

Maureen MoeglinAssociate Vice President of Human Resources

and

James ThibodeauDirector of Labor Relations and General Counsel

Addressing Employee Performance Issues without Running Afoul of the Law

What you will walk away with…. A better understanding of how to use progressive

discipline when undesirable conduct occurs. A basic understanding of the Family Medical Leave Act

and the Americans with Disabilities Act, as Amended, and the Fair Labor Standards Act and why you should contact Human Resources or the College’s Legal Counsel before taking action.

An appreciation for the importance of detailed, accurate documentation to establish a record of your efforts to help an employee dealing with performance issues and to support potential future disciplinary action.

SUPERVISOR’S ROLE

CounselorCoach

A coach trains the employee, orients him/her to the realities of the workplace and helps the employee remove barriers to optimum work performance. Coaching skills are used most often during the orientation period but are also helpful during performance reviews.

COACH

At times, the employee turns to his/her supervisor for help in defining and working through work-related or personal problems. While it is okay to show empathy in these situations and offer some suggestions, do not confuse coaching with counseling and never take on the role of a professional counselor. Instead, encourage the employee to take advantage of the Employee Assistance Program.

COUNSELOR

An Effective Coach…clearly states performance expectationsexplains not only how but also whyis consistent and fairpraises, communicates, and listensis cognizant of own personal biasseeks feedback and ideasis friendly but avoids personal friendships

Maximize Employee Performance1. Build their confidence2. Give good performance feedback3. Provide improvement resources4. Teach them to set goals5. Match them with top performers6. Catch them doing good things

PERFORMANCE APPRAISAL

Performance appraisal is the process of evaluating how well employees perform their jobs when compared to a set of standards and then communicating that information to those employees.

Source: Human Resource Management by Robert L. Mathis & John H. Jackson, 9th Edition, 2000

PERFORMANCE MANAGEMENT

A performance management (system) is a set of processes used to identify, encourage, measure, evaluate, improve, and reward employee performance

Source: Human Resource Management by Robert L. Mathis & John H. Jackson, 9th Edition, 2000

ORGANIZATIONAL STRATEGY

EMPLOYEE PERFORMANCE

PERFORMANCE MANAGEMENT PRACTICES• Identify expected performance levels• Measure individual performance, then evaluate • Provide feedback on individual performance• Provide assistance as needed• Reward or discipline based on performance

PERFORMANCE MANAGEMENT OUTCOMESDevelopment, Productivity, Advancement, Discipline, Pay Raises, Termination, Other

ORGANIZATIONAL RESULTSGoals met or not met

Source: Human Resource Management by Robert L. Mathis & John H. Jackson, 9th Edition, 2000

EMPLOYEES NEED A PUSH?

RESOURCESProcedure Memorandum VI-24 Employee Assistance ProgramJim (2428); Maureen (x2236)

NON-DISCIPLINARY ACTIONS

Are actions that may be taken when performance or conduct problems are first observed and before those problems reach a level that is judged by supervisor(s) to require disciplinary actions

TYPES OF NON-DISCIPLINARY ACTIONS

Employee ConsultationClarification of ExpectationsReassignment or Transfer (rarely used)Referral to Employee Assistance Program

EMPLOYEE CONSULTATION

One-on-one session during which supervisor makes sure the employee is aware of the problem and the consequences of not correcting the problem

EMPLOYEE CONSULTATION ESSENTIALS

Describe the behavior you want changed Spell out why the behavior is unacceptable State what changes need to be made Ask the person how he or she will make the

change happen State the consequences End on a positive note Retain a written record summarizing the

discussion

CLARIFICATION OF EXPECTATIONSWritten summary of problem, expectations & plan for improvement

Type the documentationWrite in the first person (“I” and “You”)Direct the employee; don’t suggestCommunicate clearly Explain deficiency, nature of problem,

action necessary

DISCIPLINARY ACTIONSNormal Sequence1.Oral Reprimand2.Written Reprimand3.Imposed Disciplinary Probation4.Imposed Downgrade – rarely used5. Suspension - used in special circumstances

only6.Termination of Employment Relationship

ORAL REPRIMANDInitial step—to make sure employee understands there is a problemConduct in a private settingLow-key (friendly, but firm)Explain the problem(s) & ask for reasonsCorrective steps and timelineAnswer employee’s questionsDocument the conversation

WRITTEN REPRIMAND

Formal documentation – includes: Explanation of the problem Review of prior related actions Immediate fixes (steps to take) Consequences of not fixing problem EAP clause, if appropriate Standard “signing doesn’t mean you agree”

language Indication of who gets copies

IMPOSED DISCIPLINARY PROBATION

Serious intervention Preceded by oral and written Similar to written reprimand Length of probation period determined by

Supervisor and HR/General Counsel Approval by Dean, VP, Executive VP and

President required

OTHER OPTIONS…Suspension Pending Investigation

Sometimes, employee must be removed prior to an investigation; e.g., theft, potential sabotage, disorderly conduct, threat to others

MUST contact General Counsel or HR immediately

TERMINATION OF EMPLOYMENT RELATIONSHIP

Final step in the disciplinary process Requires approval of the President Documented evidence of efforts made

to correct the problems leading to discharge.

Just cause requirement invokes due process prior to discharge (exempt employees

DISCIPLINARY ACTIONSBefore imposing, consider: Seriousness or cumulative nature of

the offense Correlation between seriousness of

offense and employee’s record Level and type of the employee’s

position—managers held to higher standard

RED FLAGS

“I’m being sexually harassed” “This is a hostile work environment” Any indication that discrimination is

involved (race, gender, etc.) Any indication that there may be health

issues (FMLA, ADA)

FAMILY MEDICAL LEAVE ACT (FMLA)

Employee Eligibility - To be eligible for FMLA benefits, an employee must:

work for a covered employer; have worked for the employer for a

total of 12 months; have worked at least 1,250 hours over

the previous 12 months

LEAVE ENTITLEMENTA covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons: for the birth and care of a newborn child of the employee; for placement with the employee of a son or daughter for adoption or

foster care; to care for a spouse, son, daughter, or parent with a serious health

condition; to take medical leave when the employee is unable to work because of

a serious health condition; or for qualifying exigencies arising out of the fact that the employee’s

spouse, son, daughter, or parent is on active duty or call to active duty status as a member of the National Guard or Reserves in support of a contingency operation.

LEAVE ENTITLEMENT Cont’d

Maintenance of Health Benefits - If applicable, arrangements will need to be made for employees to pay their share of health insurance premiums while on leave.

Job restoration to the employee’s original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.

QUALIFIED INDIVIDUAL WITH A DISABILITY - ADA

Anyone who: has a physical or mental impairment that

substantially limits one or more major life activities of such individual

has a record of such an impairment is regarded as having such impairment is qualified for a job and can perform its

essential functions with or without reasonable accommodation

On January 1, 2009, the ADAAA went into effect, making it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the statute.

The EEOC regulations implement the ADAAA -- in particular, Congress’s mandate that the definition of disability be construed broadly.

CHANGES TO THE ADA

RULES OF CONSTRUCTION

1. ‘Substantially limits’ shall be construed broadly to the maximum extent permitted by the terms of the ADA.

2. Comparison is to most people in the general population not a comparison to those similarly situated

3. Assessing whether individual is substantially limited should not require extensive analysis

RULES OF CONSTRUCTION (cont’d)

4. Disability is still determined on a case-by-case basis

5. Scientific, medical, or statistical evidence usually not required

6. Mitigating measures will not be considered

RULES OF CONSTRUCTION (cont’d)

7. Episodic or in remission limitations will be considered as if active

8. Only one major life activity needs to be substantially limited

9. Six month time frame does not apply

CHANGES TO THE ADA CONTINUED The regulations make it easier for

individuals to establish coverage under the “regarded as” part of the definition of “disability.”

The regulations clarify, however, that an individual must be covered under the first prong (“actual disability”) or second prong (“record of disability”) in order to qualify for a reasonable accommodation.

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