HOW TO DOCUMENT EMPLOYEE PERFORMANCE AND DISCIPLINARY PROBLEMS Presented By: Francine Breckenridge

HOW TO DOCUMENT EMPLOYEE PERFORMANCE

AND DISCIPLINARY PROBLEMS

Presented By: Francine Breckenridge

OVERVIEW

• Housing Authorities often need to rehabilitate or eliminate problem employees. • Housing Authorities often must defend allegations of unlawful employment practices, including discrimination. • Housing Authorities need to be able to demonstrate that whatever action was taken in dealing with a borderline employee was based on lawful, non-discriminatory reasons. • Smaller Housing Authorities have a lot more flexibility than larger ones and should avoid getting tied up in complex discipline or appraisal systems that do not work for them.

Will Your Housing Authority Benefit From Clear Appraisal, Discipline, And

Termination Procedures?1. While clear procedures may be helpful, do not establish

procedures you can’t enforce.2. Handbooks should clearly state they do not constitute a

contract of employment or alter the at-will employment relationship if you are in an at-will state.

3. Keep written rules simplea. The larger the Housing Authority, the more the need

for established proceduresb. Smaller Housing Authorities should avoid complex

procedures, policies, formsc. Design procedures and forms so the lowest level

supervisor will understand and follow

4. Prerequisites to an effective performance procedurea. Supervisors and employees must mutually respect

and cooperate with each other to accomplish the Housing Authority’s goals

b. Supervisors must recognize, encourage and support employees’ efforts to meet clearly defined goals

c. Supervisors must be seen by employees to be competent, knowledgeable and excited about their employment and professional positions

d. Employees must understand that the supervisor is sincerely interested in assisting the employees in improving their job performance

e. Employees must be receptive to suggestions and constructive critiques to improve the employee’s job performance and job-related skills

Two Kinds Of Actions Hardest For Housing Authority To Defend

Discipline and discharge based on failure to properly do the job or to follow instructions (sometimes called “performance cases”)

Discharge for a single or first incident of misconduct without a prior warning, unless egregious

What Kind Of Disciplinary Procedures??

1. For a large Housing Authority with one or more human resource professionals, there can be formal written procedures for periodic appraisals and for discipline. The smaller the Housing Authority, the more informal the process.

2. If you use a matrix for disciplinary actions, keyed to type of offense and number of prior offenses, be prepared to apply it across the board. Don’t let the exceptions undermine the rule.

3. Written progressive disciplinary procedures - framework but should not be too restrictive (best approach is to utilize progressive discipline concepts without “chiseling them in stone”).

4. Listed offenses are “illustrative” and not exclusive.5. One-on-one contact with employees on performance and

conduct problems, followed by some written affirmation.

Training

1. New employees or employees going into a new job need adequate on-the-job training.

2. Provide in-house training to update employees on new developments and procedures affecting their jobs.

3. Training should include sharpening of “people” skills. How to deal with clients, customers How to supervise and treat subordinates Sensitivity training so as to avoid offensive

comments, actions4. In-house and formal training programs can assist

employees having performance and other problems.5. Keep attendance at key training programs.

6. Keep records on training. When was it conducted? Length of training session(s) What was covered? Who was present? Attendance sheets signed by employees (add printed names to be certain they

are legible) Consider certificates of attendance on

key trainings to be retained in personnel

files for easy evidence later.

Purpose of Performance Appraisals

Evaluate the purpose(s): To determine the extent to which an employee has met or

exceeded performance standards or expectations To identify and reward performance which consistently

exceeds standards by means of:• Merit pay increases• Discretionary bonuses• Increased responsibility• Promotions

To identify and deal appropriately with consistently substandard performance and to motivate employees to improve their performance by• Withholding or denial of pay raises• Denial of discretionary bonuses• Counseling/rehabilitation• Disciplinary action including termination

To support other personnel actions based on performance To inventory the Housing Authority’s most valuable asset –

its employees Improve communications between supervisors and

employees by• Initiating periodic superior-subordinate

communications• Allowing employees a comfortable and open forum to

explain their views of the workplace, their concerns, and their understanding of their performance

Serve as a “mirror image” of the supervisor’s managerial skills and performance• Periodic review of supervisor’s efforts, or lack thereof, to

assist the employee in efforts to improve performance• Periodic review of job-related performance feedback, or lack

thereof, given to the employee by the supervisor Develop documentation for proper determination of termination

decisions, defense of EEO charges and lawsuits filed against the Housing Authority• Past evaluations reviewed by a neutral, knowledgeable third

party (labor and employment attorney) prior to the adverse employment decision to assess the advisability of the proposed termination/discipline

• If a complaint or lawsuit is filed, past performance appraisals could support the employer’s defense if nondiscriminatory reasons for the Housing Authority’s actions were documented and communicated to the employee

• Often inflated evaluations end up being the best evidence a former employee has. An employee terminated for poor performance whose last review was rated “meets expectations” is more credible when challenging a performance related termination.

Establish Performance StandardsOr Expectations

1. Can be writtena. Useful when

Housing Authority is large Human Resources staff available to assist/review Standards are quantifiable, i.e., meeting, sales,

budgets or production quotasb. Can be attached to or made part of appraisalc. Should be signed and dated by both supervisor and

employee2. Can be general, verbal

a. More difficult to measure againstb. Verbal communications subject to dispute unless reduced

to writing in memo signed by supervisor and employee; or follow up confirming email from employee to supervisor.

3. Job description importanta. Must accurately define dutiesb. Can include performance standards if fixed and objectivec. Should be in writing, signed by supervisor and employeed. Revise as duties changee. Make clear other duties may be assigned from time to

time4. Performance standards must be

a. Job relatedb. Reasonablec. Attainable

5. Different standards and forms may be appropriate for various types of positions

a. Clerical and administrative support staffb. First-line supervisorsc. High level managers, executivesd. Professionals and other expert staff personnel; i.e.,

attorneys, accountants, auditors, human resource directors, etc.

The Performance Appraisal

The larger the Housing Authority and the more diverse the workforce, the greater the need for complexity. Smaller Housing Authorities may not need to use any specific format.

An appraisal should be more than a generic description of performance

Any rating elements should be keyed to functions essential to performance of job

Not too complicated or difficult to understand

Must relate to specific period of time Ratings based on extent to which employee met or failed to meet

standards. Additional ratings should be defined on the form or on instructions accompanying the form. Again, smaller Housing Authorities may wish to keep it simple.

Should have space for short, specific comments in each rating element and general comments in connection with overall rating.

Consider requiring at least two or three reasons for any rating other than meets expectations.

Separate form or section if the form will address recommendations for promotion

What Is An Item Of “Performance”?

1. Essential job functions: Related to specific assigned duties the performance of which are essential to do the job

2. Attitude Includes whether “team player” Includes courtesy to others Attitude is too often disregarded yet underlies many personnel actions

3. Conduct On the job Off the job when ability to do job is affected or brings

discredit to the Housing Authority

Preparing An Employee’s Appraisal

Be truthful – call it as you see it

Be fair – do not exaggerate Be factual – avoid platitudes Be specific – avoid generalities

“Satisfactory” Means SATISFACTORY!

1. If the employee is not meeting standards, do not rate “satisfactory” or similar rating.

2. Do not inflate ratings. Just because all but one employee “exceeded expectations” does not mean that the problem employee simply “met expectations.” A lower grade, if not merited, sends a false message. Why would you terminate an employee for poor performance when just months earlier you told him that he was meeting your expectations? If he is meeting your expectations, then there was no need for improvement. Remember – not everyone is motivated to exceed expectations.

3. Never give inflated rating to “encourage” employee – it will come back to “bite” you.

4. If employee is mixed--great technical skills but horrible attitude--then point this out in the closing remarks noting that improvement must be made on the attitude side because technical skills alone is not sufficient.

Discuss1. Point out strengths.2. Explain that appraisal is important – both to employee and Housing Authority – and why.1. Explain shortcomings.2. Show what improvements, if any, are needed and expected.3. If below standard, describe consequences of failure to improve – If

they don’t improve, could they face termination before the next appraisal? Be honest.

4. Have employee sign the document acknowledging discussion.5. Stress the importance of two-way communication; welcome

employee questions and feedback.6. Discuss specific steps the employee could take to improve

performance.7. Discuss time frame within which employee should improve – use

measurable standards of time (not “pretty soon”) and improvements desired (not “some increase” or “substantial improvements”).

Approaches For Poor Performers

1. Informal discussions/counselinga. Address concerns directly with the employee and do so in a timely

fashionb. Follow up an oral discussion with a quick email or memo, retaining a

copyc. For supervisors and employees with work email, consider having the

supervisor create an email folder for each direct report. Then all key performance related communications (good and bad) can be copied to this subfile for later reference. A compliment from a customer can go to the subfile. A memo from the supervisor to the employee explaining the problems with a report can be copied to the subfile. Etc.

d. If a supervisor finds that he is saying the same thing to the employee on more than one occasion, then it is definitely time to put it in writing. This can be in a formal way, or it can be informal, via email or memo outlining the issue.

e. The supervisor can even ask that the employee create the documentation by asking that the employee send him an email or memo outlining his understanding of the supervisor’s concerns and expectations going forward. Then, if the employee gets it wrong, the supervisor can reply with corrections.

2. Written memorandum of counseling or performance improvement plana. When more casual efforts fail, or when the initial

concern is serious, it is time to have a formal written memorandum.

b. The written memorandum can include: The history of the concern and prior efforts to

correct. (This is where you reference the prior meetings, emails and memos).

The concern The expectation going forward The ramifications of failure to improve The signatures of both the supervisor and the

employee At-will employment reiterated, if applicable

c. Where there may be specific steps or objective factors at play, a formal performance improvement plan (PIP) may be appropriate

“Walk The Last Mile”

In “performance” and “minor” misconduct situations try to exhaust all efforts to salvage employee

Document everything – informal notes, formal memos acknowledged by employee, etc., – but remember: it is discoverable during litigation so it should be respectful

Notes, memos, evaluations are invaluable as both evidence and memory refreshers during litigation which could be several years after the event

If possible, give written warning before termination – as early in the process as appropriate since the next time might be the “last straw”

Judges and/or juries are not as prone to “second guess” when they see what efforts were made to save the employee and that he was warned of the consequences of his failure to improve

Serious “Misconduct” Cases

1. Investigate circumstances2. In “minor” misconduct situations on the job make memo

of conversations with witnesses, supervisors, etc.3. In “serious” misconduct cases,

a. Consider appointing an “investigator” other than person who would take disciplinary action

b. If taking witness statements, consult legal counsel first

c. Get employee’s side of storyd. If necessary, suspend employee pending outcome of

investigatione. If potentially criminal conduct is in issue, consult

legal counsel first.4. If discipline or discharge seems appropriate, evaluate any

similar instances and how they were addressed

I’m Not Signing!1. Explaining that their signature only acknowledges receipt,

instruct them to return to their work station and write out their understanding of:a. The Housing Authority’s concerns;b. The Housing Authority’s expectations going forward; andc. Any additional response they wish to share.

2. Avoid giving them overnight to do so, as they will illicit assistance from others and the response may not be as genuine.

3. If the employee refuses to do the above, consider whether termination is appropriate given that the purpose of the initial communication was to allow an opportunity for the employee’s improvement, but if the employee will not at least acknowledge the Housing Authority’s concerns and expectations, even with the opportunity for rebuttal, then how is improvement likely?

Avoiding EEO Complaints And Discrimination Lawsuit

1. Supervisors evaluating employees and making employment decisions should be personally familiar with employee’s responsibilities and performance

2. Similarly situated employees should be evaluated on the same bases

3. Employment evaluations and employee weaknesses must be openly communicated to the employee

4. Evaluators must be honest with the employee

5. Employee shortcomings supporting termination should be material and job-related

6. Documentation noting the employee’s weaknesses should contain facts to support the employer’s decision (specific examples of work quality; misconduct instances)

Termination

1. Consult with human resources and/or your labor lawyer before you terminate1. If Mass Layoff, Issue WARN Notice

a. The Worker Adjustment and Retraining Notification Act requires certain larger Housing Authorities to give employees advance notice of a mass layoff.

2. Review The Personnel Filea. Did the last review reflect a failure to meet

expectations?b. If termination is not based upon a single act of

serious misconduct, does the personnel file support the decision to terminate the employee?

4. Make Sure The Decision Is Consistent With Other Employment Decisions a. Is it consistent

with other decisions made by this same supervisor? with other decisions made by other supervisors? with the treatment of other employees under the same or

similar circumstances?b. If not, can the exceptions be adequately justified?

5. Follow All Written And Oral Company Policies - The manager might forget to read the Housing Authority’s handbook, but the employee’s lawyer won’t.

6. Meet with the employee in person, unless it would be unwise or impractical to do soa. Have human resources or another interested supervisor

or manager present – preferably someone who is familiar with history of case

b. In a private, non-intimidating location7. Give Notice Of Termination and listen to employee’s

responsea. Be considerate. Choose a time and place to avoid

embarrassment. Be courteous and professional.b. Get straight to the point. Do not beat around the bush.

“Today is your last day with the Housing Authority.”c. If you are going to provide a reason for the termination,

other than something generic like, “It’s not working,” then be honest about the basis for the decision. For example, an advertisement for a replacement if the employee was told the position was being eliminated may cause a jury to believe that the employer is lying.

d. State facts that can be proven. In order to avoid defamation (libel and/or slander) claims, do not make accusations of serious misconduct that cannot be proven, particularly when it comes to criminal conduct. If an employee is terminated due to suspicion of theft, the termination is best stated in terms of the employee’s failure to follow a specific company procedure. For example, he/she withdrew petty cash without completing the proper forms. Since lack of intent is a defense to criminal theft, it may be easier to prove the employee’s failure to follow procedures than the employee’s intent to steal.

e. Listen politely to the employee’s response and note anything that may be useful in defending a lawsuit.

f. If a lawsuit is anticipated, have a witness present at the termination meeting.

8. Do not give false but “kind” reasons for dischargea. Do not say “we’re reducing our staff” if the real reason

is poor performanceb. Do not say that “performance has nothing to do with it”

in a layoff unless seniority was the only factor considered.

c. If giving a reason, then state all substantive reasons for termination not just one of the three.

d. Do not recount every detail. (If you have kept notes and memos as suggested above, they will speak for themselves if the discharge is challenged.) For example, if prior meetings have been held to address performance or conduct issues, then the reason can simply be that the company has not seen the improvement it expected.

9. Rarely should termination be a surprise to the employeea. Past counseling and

warnings should put him on notice that he is facing possible termination

b. Even in case of immediate termination for “serious” misconduct, he should realize that he has been caught for a serious infraction

c. In a layoff, an employee may very well be surprised and this can not necessarily be avoided

10. Consider progressive Disciplinea. Does the employee handbook indicate there will be

progressive discipline in this context?b. Was the employee ever counseled?c. Is there a less severe corrective measure available?d. Is there any documentation supporting the

termination? 11. Do not get into a debate12. Listen quietly to the employee’s response and do not re-

engage. If present, let human resources take over at this point.

Then What?1. Make memorandum of termination meeting2. Consider allowing a neutral to conduct an exit interview –

even if the employee voluntarily resigns.a. Ask the employee to return all company documents and

property, including any confidential information from the employee’s residence.

b. If asking the employee to provide a written acknowledgment of his/her continued obligations under a non-compete or confidentiality agreement, first make sure it is enforceable.

c. Ask the employee why he/she is leaving and ask for a written resignation.

d. Consider offering a severance package in exchange for a release of liability.

3. Gather together all files, notes and documents and put in safe place

4. Make sure no one gives out any information to prospective employers or others about employee except to confirm dates of employment and position helda. Make this a consistent policy about references.b. Have all inquiries come into a designated person or

personsc. Exception:

Where there is legal or ethical obligation to report information

If information is to be provided to prospective employer, make sure it is accurate and complete to avoid being included as party in “negligent hiring” case such as in workplace violence situations.

d. Follow Company Policy On Written And Oral References Does the company’s policy limit the information

that may be provided about a former employee? Negative references: Be wary of potential

defamation actions resulting from responses to reference checks on former employees.

Positive recommendations: Do not give positive recommendations that are undeserved. It may be difficult to defend a wrongful termination action filed by an employee terminated for poor performance if the supervisor gives the employee a glowing recommendation letter, or if you are rehiring after a layoff but don’t want the employee back.

5. Inform Other Employees Only the employees with a need to know should be

informed of the reasons for an employee’s termination. Those with no need to know should simply be told that the employee is no longer with the Housing Authority, and that the Housing Authority wishes the employee all the best.

6. Respond To The Unemployment Claima. If you anticipate a lawsuit, get legal advice before

responding to a claim for unemployment benefitsb. Claimants may be disqualified from unemployment

benefits if they voluntarily resign. Resignation in lieu of termination is not a voluntary resignation.

c. Claimants may be disqualified from unemployment benefits if they are discharged due to misconduct. Misconduct includes: mismanagement of a position of employment by

action or inaction; neglect that places in jeopardy the lives or

property of others; intentional wrongdoing or malfeasance; or intentional violation of a law, or violation of a

policy or rule adopted to ensure orderly work and employee safety.

Misconduct does not include an act that is in response to an unconscionable act of a Housing Authority or superior.

d. In an appeal hearing, the Housing Authority should attempt to prove facts showing the misconduct and that the employee knew or should have known that his/her conduct could result in termination. And, to win, the Housing Authority must show that the final act that resulted in the termination constituted misconduct as the employer generally will not win on an accumulation of events theory.

7. Pay The Employee All Monies Due Different states have different timelines. Know your state’s policy on paying accrued but unused

vacation.8. Send a COBRA Notice or State Continuation Notice

9. When responding to government agencies or in court litigation, give consistent, accurate reason for dischargea. If you give one reason to your state’s Workforce

Commission, another to the Equal Employment Opportunity Commission, and still another in court, your credibility could be tarnished, and your “latest” basis for discharge might be seen as pretextual

b. Best way to insure consistency is to have the same person or department provide the information

c. Where you believe there is a good chance of being sued have your labor lawyer represent you in all administrative and judicial proceedings relating to that employee

Managing the ManagerIn spite of adopting all the appropriate policies for legal compliance, Housing Authorities still wind up getting sued in employment lawsuits based upon the acts and omissions of their managers or supervisors. By better managing its management, a Housing Authority can better manage its risk.

Me? Sued?

Managers are generally aware that the Housing Authority may be sued by a disgruntled employee or former employee.

Managers can be sued individually as well.

“Will the Housing Authority’s attorney represent me, too?”

“If there ends up being a judgment against me, the Housing Authority pays it, right?”

Employment law statutes giving rise to a private cause of action by employees narrowly define the “employer” to include the employing entity and not the individual director, manager or supervisor.

Some statutes that have broader definitions pursuant to which a responsible individual may be held personally liable.

1. Tort claims2. Conduct outside course and scope of employment3. Managers need to realize they should try to prevent

employment litigation

A. Statutes The traditional federal and state anti-discrimination

statutes do not provide for individual manager liability including Title IV, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. This is not true for anti-discrimination statutes in some of the other states.

The Fair Labor Standards Act (“FLSA”) expressly allows for personal liability to be imposed upon an individual meeting the definition of an employer: “any person acting directly or indirectly in the interest of an employer in relation to the employee.” Employers are liable for amounts found due as underpayment, an equal amount in liquidated damages and for attorneys’ fees and costs. Willful violations are punishable by a fine of up to $10,000, imprisonment up to six months or both. Additionally, the 1989 Amendments provide for a fine of up to $1,000 per violation for employers who willfully or repeatedly violate the minimum wage, overtime requirements or child labor laws.

The definition of employer in the FMLA and FLSA are nearly identical. The FMLA defines an employer to include “any person who acts, directly or indirectly, in the interest of an employer.” Further, the regulations promulgated under the FMLA evidence a very clear intent that the definition of the word “employer” be treated the same under the two statutes and that individuals be included.

The Immigration Reform and Control Act prohibits any “person or other entity” from knowingly hiring an unauthorized alien.

A Housing Authority is vicariously liable for the torts of its employees committed in the scope of their employment under a limited number of legal doctrines, respondeat superior being the most common. This is true even when the employee’s tort was intentional and not specifically authorized by the employer if it was closely connected with the employee’s authorized duties.

When the individual’s acts are not in the furtherance of the Housing Authority’s business, but are motivated by personal gratification, turning aside from employment duties to pursue purely personal interests, the acts cease to be within the course and scope of employment.

a. Defamation. A statement is defamatory if it tends to (1) harm the reputation of another so as to lower him in the estimation of the community; (2) deter third persons from associating or dealing with him; or (3) expose him to public hatred, contempt, or ridicule. A statement may be false, abusive, unpleasant and objectionable to the plaintiff without being defamatory. Expressions of opinion are protected by the federal and Texas Constitutions. Defamation arises most often in the employment context when the employer accused a current of former employee of inappropriate conduct such as theft, illegal drug use, unfair competition, incompetence or negligence.

Libel. There is a specific statute defining libel as: a. defamation; b. expressed in written or graphic form; c. that tends to injure a person’s reputation thereby exposing the person to public hatred, contempt, ridicule, or financial injury, or thereby impeaching the person’s honesty, integrity, virtue, or reputation.

Slander. Slander is defined by caselaw as: a) defamation; b) expressed in an oral statement; c) that is published to a third person; and d. refers to an ascertainable person.

Libel/Slander Per Se. A statement is libelous or slanderous per se if it unambiguously and falsely imputes criminal conduct to the plaintiff, or if the statement is spoken of a person engaged in a particular business or profession and charges him or her with fraud, indirect dealing, or incapacity, and tends to injure him in his trade, occupation, employment or business.

b. Defamation Affirmative DefensesTruth. The truth of the statement in the publication is a defense to a libel or slander action.Substantial Truth. Substantial truth is a complete defense to defamation. A statement is substantially true if it was no more damaging to the plaintiff’s reputation, in the mind of the average listener, than a truthful statement would have been.Consent/Invitation. If the plaintiff invites, requests, or consents to a statement, an action for defamation is barred.

Practical Advice for Managers

The quickest way to personal liability is to gossip and bad-mouth employees. As a practical matter, to avoid defamation claims make sure any statement you make meets 2 of the following 3 requirements:

Is it true? Is it kind? Is it necessary to say it to this person at this

time?

Intentional Infliction of Emotional Distress. Intentional infliction of emotional distress is intentional or reckless conduct that is extreme and outrageous, and which proximately causes the plaintiff to suffer severe emotional distress. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.


Being an equal opportunity jerk can get you sued. Generally speaking, it is best to avoid screaming, cussing, name calling, belittling, publicly dressing down, and generally abusing your staff. Doing this to force a resignation of a problem employee generally will not get you or the company off the hook, and is likely to backfire.

Assault & Battery. In most states, the definition of assault is the same whether it is the subject of a criminal prosecution or of a civil suit for damages. Thus, a plaintiff must prove that the defendant: (1) intentionally, knowingly, or recklessly caused plaintiff bodily injury; (2) intentionally or knowingly threatened plaintiff with imminent bodily injury; or (3) intentionally or knowingly caused physical contact with plaintiff when he knew or should reasonably have believed that plaintiff would regard the contact as offensive or provocative.


Avoid initiating any unnecessary touching of employees: no arm around the shoulder or waist, no neck/shoulder rubs, and no hugs no matter how “innocent.” A kind word and a smile will usually suffice!

False Imprisonment. False imprisonment claims in the employment context may lie when an employee is detained for some reason. The essential elements of a false imprisonment cause of action are: (1) a willful detention; (2) without consent; and (3) without authority of law. A detention may be accomplished by violence, threats, or by any other means that restrains a person from moving from one place to another.


Unless there is concern about employee violence, let the employee sit nearest the exit in contentious meetings. Never stand in front of the door. Never block their exit by placing your hand on the door.

Fraud. The elements of fraud are: (1) a material representation; (2) that was false; (3) which was known to be false when made or was asserted without knowledge of its truth; (4) which was intended to be acted on; (5) which was relied upon; and (6) which caused injury. “A promise to do an act in the future is actionable fraud when made with the intention, design, and purpose of deceiving and with no intention of performing the act.”Invasion of Privacy. A valid claim for invasion of privacy occurs when a person “unreasonably and seriously interferes with another’s interest in not having his affairs known to others.”

Practical Advice for Managers If you or your staff have the capability of monitoring the phone calls, emails, internet usage, or on-camera activities of other staff, keep in mind that your right to do so generally ends once you have the information you need for the company. Once you know the email is a love note, you are not privileged to read it in its entirety. Once you know the call is a personal call to their doctor’s office, you are not privileged to listen to it in its entirety. You can counsel for excessive use or abuse of the company’s phone or email systems without knowing all of these personal details. All you need to know is that the nature of the communication (i.e. not work related) and its duration. Once an employee begins to adjust undergarments, oblivious to the presence of the camera, you are not privileged to copy the tape and rerun it to avoid boredom.

Train Them

ComplianceWhen training management, it is important to convey how to comply with the law. Such training should cover the at-will doctrine and its more commonly litigated exceptions:

Discrimination based on race, color, national origin, religion, sex, age, disability, or Union Membership.Retaliation for exercising rights relating to Workers’ Compensation, the Family and Medical Leave Act, Jury Service, Compliance with a Subpoena, Voting, Fair Labor Standards Act, OSHA, or a family law wage withholding order, or Military Service.Termination for refusal to perform an illegal act that would subject the employee to criminal liability.

In addition, the training should cover such legal concepts as constructive discharge, implied contracts, negligent misrepresentation, and fraud.

PreventionPerhaps even more worthwhile than simply defining the various applicable laws would be to convey how to managers and supervisors how they might best prevent themselves and the company from being sued in the first place. This involves setting a much higher standard of care.

a. Dating. Any manager or supervisor who chooses to date one of their direct or indirect reports is choosing to live dangerously. An employee can consent to have sex with the boss, and still sue the employer for sexual harassment. Consent, while a defense in the criminal context, is not a defense in the civil context. The issue to the jury is not whether the employee consented to the relationship, but rather whether the employee “welcomed” the relationship. An employee may testify that they only consented to the relationship because they feared retaliation if they rejected the supervisor’s overtures.

Practical Advice for Managers. Either don’t date within the workplace, or at the very least save all the Hallmark cards and emails that prove the attention was welcome.

Fraternizing with Staff. In days of old, management simply did not fraternize with staff. While our society has moved away from such harsh class distinctions within the workplace, the courts continue to remind us that perhaps there was a grain of logic to this old school thinking. Managers and supervisors will be held to a higher standard. No where is this more obvious than in the law of harassment where under certain circumstances involving a supervisor, strict liability to imposed. Even where the Housing Authority is fortunate enough to avoid imposition of strict liability, it is still liable even if it acted reasonably in its efforts to prevent harassment and then promptly corrected the problem when the employee reported the supervisor’s harassment. Consequently, when the recently promoted first line supervisor joins the “gang” at the local bar, slams back a couple of margaritas, tells a few off-color jokes, and then flirts, the potential outcome is very different than it would have been last week before his or her promotion.


Recognize that the management hat never comes off even if you want it to. So don't get so casual with employees that you forget the position you hold. Recognize that by being around the employees when they are all letting their guard down, may obligated you to report the conduct that you observe, even if off premises and during off hours.

Insufficient Documentation. There are too hurdles that must be overcome by defense counsel in almost every employment lawsuit: the lack of documentation and the existence of inconsistent documentation, both which can typically be traced directly back to the company’s managers and supervisors. Frankly, there is no viable excuse for a lack of documentation of an ongoing problem that ultimately results in termination. Nevertheless, the lack of documentation is commonly explained by the following three management excuses:

The supervisor says: “I’m too busy to document everything.” The jury hears: “My time is far too valuable to

waste on giving such a lowly peon any direction or warning.”

(Result: Well, you arrogant jerk, you managed to find the time to terminate him, didn’t you?)

Practical Advice for Managers. Set up an email folder for each report where you store “kudos” and complaints from customers and coworkers. BCC this folder when you chastise an employee via email. Forward to this folder any emails and/or work product from the employee that will serve as an example of exceptional work or poor work.


Make the employees document the bad stuff. After chastising the employee for being late to a meeting, Instruct the employee: “Send me an email confirming your understanding of the importance of being on time.” After a meeting to address a performance issue, email the employee stating: “By Friday, I want you to shoot me an email outlining our discussion about what went wrong at the trade show and what I expect you to do differently next time. That way I’ll know we’re on the same page.” File the self-documenting emails in your email folder for that employee. Now you have proof of the discussion and it is documented in the employee’s own words.


Make the employee document the good stuff. Require that they keep a brag book that contains thank you notes from customers, coworkers, other managers, articles they have published, work they have done that goes beyond their job description, accomplishments, voluntary training, etc. Brag books should be presented to you before review time and in conjunction with any request for a raise or promotion.

The supervisor says: “I orally warned him dozens of times!”

The jury hears: “Because I was too lazy to document, I just decided to skip straight to termination.”

(Result: This makes the plaintiff’s testimony that you never warned him more credible, because otherwise, you would have put it in writing if you had really said it that often.)

Practical Advice for Managers. News flash. If you have said it that many times, they either don’t get it (in which case putting it in writing might just help), or they get it, but just don’t care. Either way, documentation is the logical next step toward solving the problem through improvement or termination.

The supervisor says: “I didn’t want to make a federal

case out of it.” The jury hears: “It wasn’t that big a deal.” (Result: So if it wasn’t important enough to

document, then how can you expect me to believe that it was important enough to merit termination?)

There is a common misperception among managers and supervisors that documenting a concern is a heavy handed way to manage. On the contrary, terminating without prior documentation is far more heavy-handed. By the time the termination meeting occurs, the employee ought to already know what is going to be said, why it is going to be said, and have already been seeking employment elsewhere.


It is much easier to say to someone, “You’re fired,” when you previously looked them straight in the eyes and said, “I don’t want to fire you, but I will if this isn’t addressed.” It is also easier to testify before the jurors if in your final warning meeting, in the presence of human resources, you actually suggested that the employee consider looking for employment elsewhere if he/she felt the expectations as you outlined them could or would not be met.

Inconsistent Documentation. Ask a room full of employment defense attorneys what evidence is most commonly the most difficult to overcome, and almost universally they will tell you, “the plaintiff’s annual evaluations.” This is because they typically provide proof for the terminated employee that one or more of the company’s managers and/or supervisors rated their performance as having met or exceeded the company’s expectations for years. The defense starts out having to back-peddle in front of the jury to try to “explain away” years of written documentation that contradicts the now proffered reason for the termination. It is important to analyze why employees who meet or exceed expectations are being terminated. It could be the result of post-review misconduct or a sudden spiraling performance problem. It is more likely that they weren’t really meeting expectations at the time of the review:

The supervisor says: “That’s just grade inflation.Everyone does it so their staff gets the best

raises.” The jury hears: “I lied for my team.” (Result: So you’ll lie for the company too.)

The supervisor says: “I prefer to focus on positivereinforcement and he did get a little better rightbefore that review.” The jury hears: “I’m a coward and would

rather be popular than honest with my employees.”

(Result: So you told him that he was doing well and then fired him? That makes no sense at all.)

Unfortunately, many Housing Authorities face grade inflation in their evaluation process and decent employees are rated as “exceeds expectations” and the poor employees are rated as “meets expectations.” One way to dissuade managers and supervisors from grade inflation is to require that any rating other than a “meets expectation” must be justified by a written paragraph or it will not stand. The generally unwillingness to take the time to justify the higher rating should force the rating average back to the middle point.


Before giving an overall “meets expectations” rating on a review, ask yourself if you can fathom over the next 12 months wanting to go to Human Resources about firing that employee. If so, then chances are pretty good that this employee is not meeting your expectations in some significant way. That had better be reflected in the review or you may have difficulty convincing Human Resources to approve the termination, and even more difficulty convincing a jury that your decision to terminate was legitimate. Imagine trying to explain to a jury why you would tell someone that in your opinion they are doing a decent job and then turn around and fire them within a matter of months.

Questions

Contact Information

Francine BreckenridgeStrasburger & Price, LLP720 Brazos St., Suite 700

Tel. (512) 499-3630 [email protected]

© STRASBURGER & PRICE, LLP. Materials contained within this presentation provide information on general legal issues and are not intended to provide advice on any specific legal matter. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Every matter is different.

Documents

HOW TO DOCUMENT EMPLOYEE PERFORMANCE AND DISCIPLINARY PROBLEMS Presented By: Francine Breckenridge