Managing Employees Do’s and Don’ts at Critical Phases of...

Managing Employees – Do’s and Don’ts at Critical Phases of Employment

March 21, 2017 Seattle, WA

Presented by:

March 21, 2017

Pam Salgado Shareholder Littler Mendelson, P.C. • Seattle psalgado@littler.com • 206.381.4928

Katie Bosbyshell Associate Littler Mendelson, P.C. • Seattle kbosbyshell@littler.com • 206.381.4937

Pamela Helman Associate Littler Mendelson, P.C. • Seattle

phelman@littler.com • 206.381.4912

Hiring Employees – A Seven Step Process:

1. Prepare Job

Descriptions

2. Advertise

3. Collect and

Screen

Applications

Hiring Employees – A Seven Step Process:

4. Job Interviews

5. Reference Checks

6. Select the Most Qualified

7. Job Offers

Writing Job Descriptions

Job Descriptions Should

Mirror Work and Operational

Realities

Gather information from

– Job incumbent

– Immediate supervisor

– Management

Writing Job Descriptions

Ask about:

– Job title

– Responsibilities

– Authority

– Essential job functions

– Reporting relationships

– Minimum qualifications

– Training or education needed

Writing Job Descriptions

Also ask for:

– Physical requirements

(lifting, bending, stooping,

climbing)

– Scheduling and work hours

– Working conditions

– Location

Job Advertisements

EEO Concerns

– No protected categories

– Reaching appropriate pool of

applicants

– Job posting consistent with job

description

– Internal Referrals (preferences?)

Implied Promises

Sample of Poorly Thought Out Ads

Sample of Poorly Thought Out Ads

SSA SPRING CONFERENCE & TRADE SHOW

Collect and Screen Applications

Job Applications

Comply with local and federal concerns:

– Ban-the-box?

– Ensure questions are lawful

– Ensure uniform process (accepting resume in lieu of

application creates risks)

– Provide accommodations for application process

Authorization and Release for background check

Statement re: misrepresentations, omissions

At-will Language

Arbitration

Comparing Applications to Job Qualifications

Participants in Process Screened From Protected Categories

Examples of Factors to Consider

– Minimum qualifications

– Compliance with Instructions

– Work related experience & education

Example of Factors that May Create Risk

– Applicant’s desired compensation & historical compensation

– Qualifications given weight that are not listed on job description or job posting

– Interests and hobbies

– Focus should be upon interview of the applicant

Job Interviews

Potential Protected Categories that May Arise

Pregnancy Status

Marital Status (WA)

Sexual Orientation (WA)

Religious Beliefs

Disability

Political Ideology

Military Service

Children or Dependent Care

National Origin

Do Not Ask About . . .

• Family origins

• Whether English is

first language

• Where someone lives

What May Be Asked Instead?

Family

origins

Other languag

es

• No questions about family origins

• If required for the job: “What languages can you speak fluently?”

Where

someone lives

• “Can you be reached at this address, telephone number?”

Do Not Ask About . . .

• Pregnancy Status

• Marital Status

• Sexual Orientation

What May Be Asked Instead?

Spouse

Do you have any

commitment that would

prevent working regular or overtime hours?

Children Do you anticipate being

absent in the next 6 months?

Pregnancy Can you consistently attend work?

Do Not Ask About . . .

• Age

• Disability

What May Be Asked Instead?

Outside Activities

• Have you been involved in

any activity that has provided

you with experience, training or skills that would be helpful to

a position here?

• Do you have any commitment which would prevent you from

working regular or overtime hours?

Minimum Age

• Can you, if employed, show that you are over 18?

What May Be Asked Instead?

Citizenship Status

Legal Ability To Work

Can you establish eligibility to work in the U.S. (I-9)?

OR You may note on the

application that “documentation proving legal right to work in U.S. will be required upon hiring.”

Important Lessons

Use a panel (consider diversity and knowledge of job)

Train panel on what can and cannot be asked

Train panel on documentation

Develop Standardized questions from job description

Train panel on scope of follow-up questions

Train interview panel for how to respond to self-disclosure

Verify that decisions are based upon legitimate, non-

discriminatory business reasons

Don’t Make . . .

Promises

How Do I Preserve The Employment-At-Will Relationship?

“As long as you

follow the rules,

you’ll have a job

here.”

“You’ll always

get a written

warning before

termination.”

Five Interview Mistakes

1. Failing to ask tough, direct questions about an applicant’s job qualifications

2. Talking too much

3. Over- or under-selling your organization

4. Finding common ground by gossiping

5. Failing to make the interview as long, or as short, as needed

Interview Notes

Job Interview Documentation

Remember notes can be

evidence of lawful or unlawful

inquiries

Develop a form for interviewers

to use

Retain interview records

Ensure notes are job-related

Consider recording reason for

selection/non-selection

Offer Letters

Highly recommended

Describe position/salary (subject to change)

Include integrated at-will employment

agreement

Can include arbitration agreement

Subject to pre-hire drug test, background

check, right to work in U.S.

Subject to non-compete or restrictive

covenants

Remind of obligations to prior employers

Onboarding

Confirm All Paperwork – Signed & Dated!

– EEO policies

– Handbook

– Non-compete/restrictive covenants

– Arbitration Agreement

– I-9

Meaningful Orientation (employee &

supervisor)

Avoid Implied Promises

The Performance Review: General Principles

1. Make every review a priority.

2. Be thorough, specific, objective, factual, and

consistent.

3. Don’t spring surprises.

4. Meet with the employee in person.

5. Be fair, candid, and honest.

The Performance Review: General Principles

6. Don’t leave anything

important out.

7. Comments should stand

alone.

8. Convey clear expectations

for future performance.

Example

INEFFECTIVE

– Not our image

EFFECTIVE

– As a receptionist, Jen is in a

public contact position. On

four occasions [list dates],

she has been verbally

counseled not to work on

her nails at the front desk

and not to pop gum while

greeting guests.

Example

INEFFECTIVE

– Doesn’t carry

his weight

EFFECTIVE

– Team members are required to take overload from

the others after finishing assigned tasks. Ryan has not

done this. Instead, he goes to the lounge for coffee,

makes frequent personal telephone calls, and chats

with his coworkers. When I ask him to assist other

employees, he is reluctant to do so. For example, I

asked him to assist Jim with the quarterly budget.

Ryan appeared to be very irritated by this request. He

sighed, frowned, and did not reach out to Jim until

the following week. In the future, Ryan should

volunteer to help others who are overloaded, without

being asked, and should devote the same effort and

commitment that he puts towards his own initiatives.

Example

INEFFECTIVE

– Hard worker

EFFECTIVE

– Pamela accomplishes 25% more tasks than her peers and the quality of her work is always above that of her peers. She arrives on time every day and she volunteers to work overtime when it is necessary. I regularly rely on her to help us achieve goals.

Performance Review Tips

Acknowledge good performance

Counsel to be corrective

Focus on specific actions needed to achieve

goals

Deliver consistent and specific feedback

Performance Review Tips

Have more than one manager attend

Superior review

Performance Review Pitfalls

Acknowledge only poor performance

Counsel to be punitive

Focus on general statements or sentiments

Deliver inconsistent feedback

Let emotions get in the way

Wait until the end to partner

Performance Review Pitfalls

View corrective action as merely a pre-cursor to

termination

Emphasize opinions over facts

Avoid a tough conversation by giving an average or positive

review

Scores for all categories are the same with no explanation

Stray remarks

Failing to document

Documentation

Proof that the meeting occurred

Outline of topics discussed

Record of employee’s reactions to discussion points

Employee’s signature

Distribute the documents to personnel file

HR Tip: review and/or audit evaluations

What NOT to Include in Documentation

Personal opinions

Legal conclusions

Hearsay, gossip, rumors

Information about a medical condition

EEO status

References to prior irrelevant history

Disciplinary Steps: Know the Facts

Conduct interviews. Consider all sides.

The accused should have an opportunity to

respond to every allegation.

Do not decide on discipline until investigation is

complete.

Consider proper scope of confidentiality.

Disciplinary Steps: Review the Paperwork

Past Warnings

Performance Reviews

Commendations/Awards

Files on Other Employees with

Similar Performance/Duties

Handbook Policies (e.g. performance

management policies)

Discipline Considerations

Consider the Legal Risks

– Is the employee in protected class?

• Gender?

• Minority?

• Over 40 years old?

• Disabled/workplace injuries?

– Has the employee engaged in

protected activity?

Discipline Considerations

Consider Your Policies

– What do your handbook policies require? What are your

options?

– Have you followed all policies and procedures?

• If not, is there an objective, justifiable reason for deviation?

– What are your past practices? Would termination be consistent

with past practices?

• If not, is there an objective, justifiable reason for treating this situation

differently?

Discipline Considerations

Consider mitigating factors

Consider your documentation

– Do you have sufficient “proof” of the reasons for discipline?

– Do prior performance evaluations support or refute your decision?

– Was the current issue documented in a prior evaluation?

Do the documents show a legitimate business reason?

Communicate expectations and consequences – but avoid

promises

Document results

Avoid The Classic Mistake

The best way to

terminate problem

employees . . .

Don’t hire them!

Termination Considerations

Consider Fairness

– What does your gut (the jury) say?

– Would a neutral third party believe termination was fair?

– Does the penalty fit the crime?

– Is termination timely?

– Is the employee going to be surprised by the termination?

Common Termination Mistakes

Segmenting performance issues; not looking at the bigger picture

Appearance of retaliation

Failing to get the employee’s point of view

Forcing an employee to resign

Failing to offer constructive counseling until too late

Failing to address/document the true reason for termination

Offering a severance and requiring nothing in exchange

Tips for the Termination Meeting

Don’t go it alone, if possible.

Document the discussion.

Don’t apologize or negotiate.

Be prepared (last paycheck, list of property to return,

termination of benefits).

Conduct meeting in private.

Remind employee of duty of confidentiality or other

restrictive covenants.

Questions?