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Progressive Discipline and Termination prepared for Pennsylvania Chamber of Business and Industrys 2

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Progressive Discipline and Termination. prepared for. Pennsylvania Chamber of ... Witnesses? Ordinarily, one witness: usually, HR representative. Termination Event. 35 ... – PowerPoint PPT presentation

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Title: Progressive Discipline and Termination prepared for Pennsylvania Chamber of Business and Industrys 2


1
Progressive Discipline and Termination prepared
for Pennsylvania Chamber of Business and
Industrys 2009 Annual Human Resources
Conference December 1, 2009
  • Presented By
  • Mark A. Fontana, Esquire
  • Renee C. Mattei Myers, Esquire Eckert Seamans
    Cherin Mellott, LLC 213 Market Street 8th
    Floor Harrisburg, PA 17101 (717) 237-7163
  • No statements made in this seminar or in the
    written materials/power point should be construed
    as legal advice pertaining to specific factual
    situations.

2
The Fundamentals
  • Common sense
  • Consistency
  • Fairness
  • Important to keep in mind when dealing with
    discipline and termination issues.

3
Relevant Law To Keep In Mind
  • Discrimination Issues
  • Cannot make any discipline or performance
    decisions based upon membership in a protected
    class (either directly or indirectly) (race, sex,
    religion, national origin, age or disability
    status)
  • Make sure your decision is not tainted by
    unlawful discrimination

4
Relevant Law To Keep In Mind
  • Retaliation Issues
  • Cannot make any discipline or performance
    decisions based upon an employees exercise of
    protected statutory rights (e.g., filing an
    internal or external complaint participating in
    an investigation)
  • Wrongful Discharge Issues
  • Exception to Pennsylvania employment-at-will rule
    if discharge violates a well-established public
    policy (e.g., filing a workers compensation or
    unemployment claim whistleblowing jury duty)

5
  • "Just Cause" must be significant deficiencies in
    performance or behavior (usually following
    progressive discipline)
  • "At will" can terminate
  • At any time
  • For any or no reason
  • With or without prior notice

6
Relevant Law To Keep In Mind
  • Union/Contract Issues
  • Just Cause for all discipline and/or discharge
    decisions is required
  • Employee/Union have right to grieve any such
    decisions
  • Burden of proof is on the Employer in any
    arbitration hearing
  • Right to Union representation (unless waived) if
    meeting is investigatory or if discipline is to
    be imposed under contracts

7
  • Why pretermination notice is important even if
    employee is at will
  • Fairness to the employee
  • Cost to the business
  • Decreases the likelihood of a claim
  • Decreases the employer's exposure in litigation

8
Progressive Discipline
  • Traditional steps
  • Oral warning (or equivalent)
  • Written warning (or equivalent)
  • Final warning (or equivalent)

9
Progressive Discipline
  • Written policy
  • Reserve right to skip steps
  • Reiterate at-will principle

10
Progressive Discipline
  • Exceptions to progressive discipline include, but
    are not limited to
  • Introductory/probationary period

11
Progressive Discipline
  • Serious offenses, such as
  • Harassment
  • Insubordination
  • Theft
  • Violence
  • Sleeping
  • Sarbanes-Oxley (ethics violations)

12
Progressive Discipline
  • Core elements of disciplinary notice
  • Expectation(s) not being met
  • Specific failings in terms of performance or
    behavior
  • Prior counseling/discipline
  • Expectations going forward
  • Consequence of not meeting expectations

13
Elements of the Documentation
  • Expectation(s) not being met
  • General expectation
  • Specific expectations

14
Elements of the Documentation
  • Specific failings in terms of performance or
    behavior
  • Common documentary mistakes
  • Use of labels as opposed to describing behaviors
  • Focus on cause of deficiencies as opposed to
    deficiencies themselves
  • Focus on intent as opposed to outcome

15
Elements of the Documentation
  • Absolutes
  • Too many hedges
  • Suggest all inclusive as opposed to only examples
  • Bundling of protected and unprotected absences

16
Elements of the Documentation
  • Bundling of protected and unprotected complaints
  • Inconsistent with appraisal comments and/or
    ratings

17
Elements of the Documentation
  • Address, where applicable
  • Response to voluntary disclosure by employee of
    medical/emotional condition
  • Mitigating or aggravating circumstances

18
Elements of the Documentation
  • Prior corrective counseling
  • Formal
  • Informal
  • Expectations going forward
  • General versus specific
  • Time frames

19
Elements of the Documentation
  • Consequences
  • Current Step Next Step
  • informal counseling gt formal discipline
  • formal discipline gt more severe discipline, up
    to and including discharge
  • final warning gt immediate termination without
    further warning

20
Implementation
  • Oral warning
  • Document in writing
  • Copy to employee

21
Implementation
  • Final warning
  • State specifically this is your final warning
  • Performance problems required improvement
  • Immediate
  • Significant
  • Sustained

22
Implementation
  • Behavior
  • Do not limit to behavior which was the cause for
    the final warning
  • Include also any other problems with performance
    or behavior of any kind

23
Implementation
  • Tools in conjunction with final warning
  • Monitoring period employee must make and
    sustain improvement both during and following
    monitoring period

24
Implementation
  • Suspensions
  • Issues re exempt employees
  • Decision day day off with pay

25
Implementation
  • Timing
  • Legal risks of delay
  • Documenting timing

26
Implementation
  • Time between steps
  • Generally, more time for performance than conduct
  • Caution bevy of memos in short period of time
    looks like a set-up

27
Implementation
  • Active life
  • Look to language in policy/contract
  • If policy/contract silent -- reasonableness

28
Implementation
  • Signature
  • Usually unnecessary
  • If require, require only acknowledgement of
    receipt as opposed to agreement

29
Implementation
  • Personnel file
  • All formal discipline in formal personnel file
  • Supervisors may maintain separately "informal
    notes"

30
Termination Event
  • Approval process
  • Role of HR
  • Resolving disputes without making admissions

31
Termination Event
  • Classify the termination decision
  • Discharge
  • Job elimination

32
Termination Event
  • Where?
  • Confidential area
  • Uniform safety precaution escape route

33
Termination Event
  • When?
  • Any day but Friday
  • End of day, preferable

34
Termination Event
  • Witnesses?
  • Ordinarily, one witness usually, HR
    representative

35
Termination Event
  • Documentation
  • Memo to file indicating general reason for
    termination
  • Memo to the employee (depending on the
    circumstances)

36
Termination Event
  • Termination event discussion
  • Manager
  • Statement that employment will terminate
  • Date of termination
  • General reason for termination

37
Termination Event
  • Human Resources
  • Focus on post-termination issue
  • Intervene if necessary

38
  • Never say
  • Im sorry
  • I know how you feel
  • We had no choice
  • This will be good for you in the long run
  • This is harder on me than you

39
HYPOTHETICAL NO. 1
  • Steve is an average employee. He performs the
    tasks assigned to him but does not take on
    additional projects or offer to learn new aspects
    of the business to advance himself. Lately, it
    appears that Steve is doing only the bare minimum
    in order to keep his job. He also has developed
    quite a negative attitude and you are concerned
    that this is affecting his coworkers. How do you
    approach Steve?

40
HYPOTHETICAL NO. 2
  • Donna was once a star employee but lately her
    performance has been steadily declining. You
    have given her verbal and written warnings but
    there has been no improvement. Instead, her
    performance has continued to decline. The next
    step in your progressive discipline policy is a
    suspension and final warning. Prior to your
    meeting with Donna, you learn from some of her
    co-workers that Donna is having issues in her
    personal life including dealing with a sick child
    and going through a messy divorce. She also seems
    very depressed in terms of her attitude and
    energy. When you give Donna the final warning,
    how do you address the personal problems she is
    having and/or your concern that she may be
    depressed?

41
  • Thank you!
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