JL Webinar 6.11.13 presentation - Sterling Talent Solutions Webinar 6.11.13 presentation.pdf ·...

July 6, 2012

Presentation for June 11, 2013

“Addressing Problema1c Personnel Issues -‐ Difficult Conversa1ons With Employees”

Sterling Overview

! Established in 1975 ! World’s Largest Company Focused En1rely on Employment Screening ! Over 14,000,000 transac1ons annually ! 2,200+ Total employees, a global network of researchers and verifiers ! 96% Client Reten1on Rate ! Lean Six Sigma Process Orienta1on ! Interna1onal Organiza1on for Standardiza1on (ISO) Cer1fica1on 9001:2008 ! ISO 27001 Security Control Objec1ves ! Safe Harbor Cer1fied

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ArrestDirect™ & Employee Incarcera1on Alerts A Be.er Map for Finding Criminal Convic>ons

! When you search only based on residences using an SSN trace, you may not become aware of every jurisdic1on that should be searched for poten1al convic1ons. ! Most Crimes happen where people live, work and play, and the corridors in between. The goal is to find all of them,

quickly and cost effec1vely.

! ArrestDirect does just that – Case Study: ! 15,500 applicants used as test study for expanded ArrestDirect search.. ! ArrestDirect Revealed 179 Net New Applicants with convic1ons, That represents 12% more criminal records! ! Previously unrevealed Convic1ons included: 27 Thefs, including Armed Robbery. 17 Assaults, including Aggravated

assault with a deadly weapon

! Post Hire-‐ Employee Incarcera1on Alerts ! Be aware of new and pending employee incarcera1ons as they happen. ! Proac1vely support your exis1ng policy on self-‐repor1ng.

Take swiC ac>on as necessary – Protect your employees and your customers.

Be informed so that you can work proac>vely to mi>gate risk to your company and your brand .

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“Addressing Problema1c Personnel Issues: Difficult Conversa1ons With Employees”

Presented by: Richard I. Greenberg

Jackson Lewis LLP 212.545.4000

What Are The Most Difficult Conversa1ons

To Have With Employees?

Why Some Conversa1ons Are Difficult?

! Embarrassing Issues

! Personal Rela1onships

! Lack of Knowledge

! Fear of Deflec1on

! Fear of Retalia1on

! Reluctance To Create Legal Exposure

! General Discomfort

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Risks Associated With Not Having “The Conversa1on”

! Exposure To A Legal Claim

! Deteriora1on of Employee Morale

! Sending The Wrong Message

! Injury / Workplace Violence

! Disrup1on of Business Opera1ons

! Rumors

! Explosion Without HR Involvement

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Guide To Tackling The Difficult Conversa1on

! Goal for Conversa1on

! Timing of Conversa1on

! Understanding Poten1al Downside of Conversa1on

! Ensuring Sufficient Knowledge Possessed To Have The Conversa1on

! Determining If “Holding Paqern” Needs To Be Implemented

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What Is Your Goal For Difficult Conversa1ons?

! What is your focus? ! Stay on right side of the line

! Ensure you are prepared?

! Know the facts

! Have you created a roadmap for success?

! Are you prepared for twists and turns?

! Is the goal clear?

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Have You Timed The Conversa1on Correctly?

! Nexus with intended goal?

! Time of the day?

! Witness / Loca1on

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Have You Considered Legal Risks?

! What are my exposure areas?

! Can they be avoided?

! Can I limit those exposures? ! Rehearse – how do I say it? ! Reasonable accommoda1on ! Documenta1on

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Knowledge

! Do You Have Enough Confirmed Informa1on For A Produc1ve Conversa1on?

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Difficult Conversa1on #1: “The Malodorous Colleague”

Managing Employee Odor In The Workplace

Difficult Conversa1on #1 -‐ “What Is That Smell?”

! Goal: ! Address odor issue in workplace – It’s about the smell ! Body Odor ! Perfume / Cologne ! Other Types

! Timing: ! Limit embarrassment

! Legal Risks: ! Disability discrimina1on ! Religious discrimina1on ! Retalia1on

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Difficult Conversa1on #1 -‐ “What Is That Smell?”

! Conversa1on:

! Ensuring sufficient knowledge and understanding of the facts

! “It is being reported that _____________.”

! This is not an isolated report and it has been made by several co-‐workers.

! Invite employee to propose solu1on

! “We all share this workplace. What can we do?”

! Don’t encourage discussion of legal risks . . .

! “Why?”

! . . . but be prepared to respond

! “What can we do to help resolve this issue?”

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Difficult Conversa1on #2: “You’re Just Not Yourself”

Suspicion That Employee Is Suffering From

Some Type of Mental Condi1on

Difficult Conversa1on #2 – “You’re Just Not Yourself”

! Goal: ! Improve performance and workplace morale/Get to core of issue

! Effect on job ! Effect on co-‐workers

! Timing: ! Limit embarrassment ! Response to a specific incident or complaint

! Legal Risks: ! Disability discrimina1on/Retalia1on ! Workplace violence ! Employee well-‐being (we care about our employees)

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! Conversa1on:

! Ensure sufficient knowledge and understanding of the facts (jus1fy

conversa1on)

! “It has been reported that _______________”

! “This is coming on the heels of _____________”

! “This violates our policy” or “Performance is unacceptable”

! “This is a-‐typical”

! “Needs to be corrected”

! Invite employee to communicate / propose solu1on

! Is this anything you would like to discuss with us?

! “How can we help you with performance / communica1on?”

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! Conversa1on (cont.):

! Be prepared for iden1fica1on of medical condi1on

! EAP

! FMLA

! Other type of leave

! Responding to medica1on usage

! If serious . . .

! “Direct threat” scenario

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Difficult Conversa1on #3: “He / She Said or Did What!?!”

Confron1ng The Accused As Part of A

Harassment Inves1ga1on

Difficult Conversa1on #3 – “He / She Said What!?!”

! Goal:

! Determine whether a viola1on of your harassment policy took place and, if

so, what are the necessary/appropriate consequences

! No place for personal feelings

! Objec1vity must prevail

! Timing:

! Contemporaneous with complaint

! Limit embarrassment

! Sequence of interviews

! Appropriate inves1gator / witness

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(Cont.) ! Legal Risks:

! Confiden1ality / Defama1on ! Retalia1on ! Deflec1on > Discrimina1on

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! Conversa1on:

! Ensure sufficient understanding and knowledge of the facts

! “There has been an allega1on that you ________________”

! “The complaint was made by __________________”

! “We have spoken to several individuals who have _____________”

! Applica1on of funnel technique

! “What happened?”

! Trend to the specifics

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! Conversa1on (cont.):

! Ask the tough, specific ques1ons – don’t be afraid!

! Encourage a through and complete response

! No need to disclose source of informa1on / witnesses

! Get details

! “What specifically was said to you?”

! Be prepared to start all over again!

! Be prepared for the cross-‐complaint

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! Addi1onal Thoughts:

! Be open-‐minded and impar1al

! Don’t just focus on words . . . body language may tell story

! Entertain explana1on / defer deflec1on

! Listen for mo1ves

! Ask about other possible witnesses

! Handling non-‐coopera1ve employees

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Difficult Conversa1on #4: “Are You On Something?”

Handling A Poten1ally

Under-‐The-‐Influence Worker

Difficult Conversa1on #4 – “Are You On Something?”

! Goal: ! Determine whether employee is under the influence of drugs / alcohol

! Ensure safety and health of workplace/ensure integrity of workplace ! Put personal feelings aside

! Timing: ! Contemporaneous is cri1cal ! Appropriate witness / properly trained ! Security / loca1on

! Legal Risks: ! Disability discrimina1on ! Workplace violence ! Negligence

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! Indica1ons: ! Direct observa1on of possession, distribu1on, or use of drugs or alcohol

! Slurred, rapid or incoherent speech

! Hyper-‐body movements, staggering, unsteady, poor muscular control or motor coordina1on

! Dilated or constricted pupils

! Bloodshot or watery eyes

! Extreme fa1gue or sleeping on the job

! Excessive swea1ng or clamminess of skin

! Flushed or very pale face

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! Indica1ons (cont.): ! Highly excited or nervous mood ! Nausea or vomi1ng ! Smell of alcohol ! Disheveled appearance ! Dry mouth (frequent swallowing / lip wexng ! Dizziness or fain1ng ! Shaking hands or body tremors / twitching ! Breathing irregularity or difficult breathing ! Puncture or “track” marks

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! Conversa1on:

! Understanding the facts

! “We have observed ______________”

! “We have been informed ______________”

! Iden1fy short / long term indicators

! “It is our preliminary conclusion that you are under the influence of _______________”

! Not interested in “Story of Woe”

! “I am focused on what is happening now”

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! Conversa1on (cont.): ! Don’t be afraid to ask the tough ques1on

! “Were you drinking today?”

! Admit / Deny

! Consider substance abuse test

! Focus on transporta1on!

! Be prepared for employee to disclose use of controlled substances

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Difficult Conversa1on #5: “Your Employment Is Being Terminated”

Par1ng Ways – By Choice Or By Force

Difficult Conversa1on #5 -‐ “Your Employment Is Being Terminated”

! Goal: ! To separate employment without issue or drama or unnecessary strife

! Don’t forget goal! ! Not the 1me to inves1gate ! No surprises!

! Timing: ! Contemporaneous is cri1cal ! Limit embarrassment ! Loca1on / privacy ! Appropriate witness ! Security concerns

! Legal Risks: ! Everything!

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! Conversa1on / Layoff: ! “As you may be aware, the Company has ____________” ! “Unfortunately, this affects many dedicated employees like you” ! “As a result of this __________, we are forced to separate your employment”

! Stay away from details regarding basis for selec1on ! Transi1on package / release ! Benefits / pay ! Addi1onal assistance


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! Conversa1on / For Cause Termina1on: ! “As you are aware, the Company has inves1gated ________ you _______________”

! “As you know, we have repeatedly discussed our concerns with your performance”

! “Unfortunately, we have concluded __________” ! “This decision is effec1ve immediately” ! Benefits / pay


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The Termina1on Mee1ng

! Prepara1on Is The Key To Success

! Workplace due process

! Final paycheck, benefit calcula1on, etc.

! Reason? Rehearse!

! Appropriate person / witness

! Loca1on / privacy

! Timing of mee1ng

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The Termina1on Mee1ng

! Guidelines For An Issue-‐Free Termina1on Mee1ng ! Be consistent, brief and direct/CONTROL THE DIALOGUE ! Do not argue / debate / jus1fy ! Do not suggest self-‐improvement ! Do not apologize ! Be on board with decision ! Avoid discriminatory remarks/be respecyul ! Arrange return of Company property ! Non-‐compete? ! Exit interview

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Addi1onal Difficult Conversa1ons

! “You fell asleep again at your desk”

! “Our employee reports he / she is in an abusive rela1onship”

! “Did you really say that you were going to harm yourself and others?”

! “Is it true your Facebook pages says __________?”

! Did you put that your had my 1tle on LinkedIn?

! You do know you are supposed to report to work on 1me and work your full shif?

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THANK YOU!

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THE MATERIAL CONTAINED IN THIS PRESENTATION WAS PREPARED BY THE LAW FIRM OF JACKSON LEWIS LLP FOR THE ATTENDEES’ OWN REFERENCE IN CONNECTION WITH THIS SEMINAR. SINCE THE MATERIAL AND RELATED DISCUSSIONS ARE INFORMATIONAL AND

EDUCATIONAL IN NATURE AND REPRESENT THE SPEAKER’S OWN VIEWS, ATTENDEES SHOULD CONSULT WITH COUNSEL BEFORE TAKING ANY ACTIONS AND SHOULD NOT CONSIDER THESE MATERIALS OR RELATED DISCUSSIONS TO BE LEGAL OR OTHER ADVICE. PROFESSIONAL ADVICE SHOULD BE OBTAINED BEFORE ATTEMPTING TO ADDRESS ANY LEGAL SITUATION OR PROBLEM.

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