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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 [email protected] • 206.381.4928
Katie Bosbyshell Associate Littler Mendelson, P.C. • Seattle [email protected] • 206.381.4937
Pamela Helman Associate Littler Mendelson, P.C. • Seattle
[email protected] • 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?
