Performance Management Just Cause - Central · Web viewA Manager’s Guide to Coaching,...

CENTRAL WASHINGTON UNIVERISTY

Central Washington University SUPERVISOR ENRICHMENT

PROGRAM

Facilitated by:

Cheryl Hintz Middleton, Esq.

ProACT Law Group, PLLC1501 N. 200th Avenue, Suite 103

Shoreline, WA 98133

[email protected] (206) 546-3800

mailto:[email protected]

This training is provided by CWU Human Resources,

Equal Opportunity & Professional Development

located in Bouillon Hall 205

Gail Farmer

Administrator

963-2206

[email protected]

Veronica Gomez-Vilchis

Program Specialist

963-2205

[email protected]

For more professional development opportunities visit our website at www.cwu.edu/hr

ProACT Law Group, PLLC © 2013

http://www.cwu.edu/hr



TABLE OF CONTENTS

1. Roles and Responsibilities

a. The Role of the Supervisor

b. The Legal Landscape

c. Labor Relations

2. Performance Management

a. Development and Coaching

b. Corrective Action and Discipline

c. The PDP

d. Motivate and Inspire

3. Recruitment and Selection

a. Interview Questions

b. Select the Best Candidate

4. Compensation Practices

a. Overview

b. The Exemptions


Roles and Responsibilities

What hats do supervisors wear?

What is your role as supervisor?

The 360° Supervisor

Managing expectations:• supervising friends• more experienced workers• less experienced workers• new hires


Peers and Upper

Management

Internal and External Clients

Direct Reports and Peers


Tips for Supervisors:

• don’t always take charge

• delegate and follow up

• you don’t need all the answers; just the questions

• allow your team the opportunity to learn and grow

• be accessible and approachable

• communicate not just the WHAT that needs to be done but the WHY

• don’t set up “us and them” mentality

• set clear expectations

• model appropriate behavior

• correct issues, don’t avoid them

• encourage, recognize and promote

• communicate ideas from the team upward



Traditional vs. Relational Management

Traditional Approach

1. Identify issues to be addressed;

2. Explain rules clearly;

3. Explain consequences of breaking rules;

4. Offer solutions; and

5. Direct employee to comply.

Relational Approach

1. Create relationship with employee;

2. Clearly present issue;

3. Gather information re the worker’s perspective;

4. Engage in problem solving together; and

5. Help employee commit to action plan.



A Review of the Protected Classes


Divide into groups of 3. You have 3 minutes to name the protected classes. GO!

What is the connection between Supervisory Decisions and the Protected Classes?


Governing Law: What binds CWU supervisors?

Federal Law

Title IX (1972)

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

Title VII

According to Title VII, an employer may not “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of” protected class status.

Additionally, an employer may not “limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of” protected class status.

• Pregnancy Discrimination Act• National Labor Relations Act• Fair Labor Standards Act • Age Discrimination in Employment Act



Other Federal Law

The Americans with Disabilities Act and Amendments (ADAAA) Title II and Title III

The Americans with Disabilities Act of 1990 (ADA) prohibits discrimination and ensures equal opportunity for persons with disabilities in employment, State and local government services, public accommodations, commercial facilities, and transportation.

The ADA defines an individual with a disability as one whom:

(1) has a physical or mental impairment that substantially limits a major life activity,

(2) has a record or history of a substantially limiting impairment, or

(3) is regarded or perceived by an employer as having a substantially limiting impairment. (Reprinted from the United States Equal Employment Opportunity website, Job Applicants and the Americans with Disabilities Act. New Amendments to the ADA took affect January 1, 2009. (See Appendix A.)



The Washington State Legal Landscape

Disability Law in Washington is much broader than the ADA:

Washington Law Against Discrimination (WLAD) defines disability as a “sensory, mental or physical impairment” that (1) is medically cognizable or diagnosable; (2) or exists as a record or history; or (3) is perceived to exist whether or not it exists in fact.

The term “impairment” specifically includes

physiological disorders or conditions, cosmetic disfigurement, anatomical loss affecting particular body systems, mental, developmental, traumatic, or physiological disorders including cognitive limitation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

In Washington, employers must accommodate impairments known or shown through the interactive process to in fact exist, and

(1) the impairment must substantially limit the person’s ability to perform, apply or be considered for the job, or access to equal benefits, privileges or terms or conditions of employment; or

(2) the employer is on notice of the existence of an impairment, and medical documentation establishes a reasonable likelihood that engaging in job functions without accommodation will aggravate the impairment creating a substantially limiting effect.



More of the Local Legal Landscape

Applicable Merit System Laws (RCW 41.06)

Applicable Merit System Rules (WAC 357)

Other Statutes like RCW 49.60 and RCW 49.44

CWUP: Policies and Procedures

Collective Bargaining Agreements

Pattern and Practice?

Remember: A Message From President Gaudino

CWU is committed to an environment in which everyone is treated with dignity and respect.

Therefore we must ensure that each member of our community has the skills and knowledge to nurture an environment that honors the rights of all.

We want CWU to be a diverse, student-centered school where we pride ourselves on building the lives of our students.



The Legal Landscape: Theories of Discrimination

Disparate Treatment

Disparate Impact

Glass Ceiling

Failure to Accommodate

Retaliation

Failure to Hire


Harassment


An Overview of Labor Relations

The National Labor Relations Act: 1930’s

• Increased worker rights due to political climate of Great Depression

• Unions gained right to bargain for workers in wages, hours and working conditions

• Employees won right to organize, bargain collectively, strike and picket

•National Labor Relations Board (NLRB) established to investigate unfair labor practices, certify bargaining units and supervise elections

• Delineated unfair labor practices for management

NLRA does not apply specifically to public employees, but principles found throughout state laws.




Basic State Statutes and Administrative Bodies

• Public Employees Collective Bargaining Act (PECBA) found at RCW 41.56 passed in 1975 gave public employees the right to organize and choses representatives

• RCW 41.56.021 makes the PEBCA applicable to Employees of Higher Education and contains exceptions to coverage

Department of Enterprise Services administers state employment

Washington State Public Employment Relations Commission PERC:

• It is the mission of the Public Employment Relations Commission to prevent or minimize disruptions to public services by the uniform, impartial, efficient and expert resolution of labor-management disputes.

• PERC covers some higher education employees, State Troopers, and City and County Government Employees




Basic State Statutes and Administrative Bodies

The Personnel Resources Board

• The Board hears appeals filed by civil service employees of the state of Washington. The Board strives to adjudicate appeals in a timely, efficient, and objective manner, ensuring the rights of employees and management while protecting the interests of the state's citizens.

•The Personnel Resources Board consists of three members appointed by the Governor, subject to confirmation by the Washington State Senate. The Board staff is comprised of two employees who provide technical, administrative, and support services under the direction of the State Human Resource Director within the Office of Financial Management.

Chapter 41.06 of the Revised Code of Washington (RCW) includes the statutory authority for the Board to adjudicate.

Title 357 of the Washington Administrative Code (WAC) contains the administrative rules governing the appeals process.


http://apps.leg.wa.gov/WAC/default.aspx?cite=357

http://apps.leg.wa.gov/rcw/default.aspx?cite=41.06



Basic State Statutes

• Chapter 28B.52 RCW Collective Bargaining -- Academic Personnel in Community Colleges (Statute covering community college and technical college faculty only.) • Chapter 41.06 RCW State Civil Service Law (Selected provisions of statute covering state civil service employees.) • Chapter 41.56 RCW Public Employees Collective Bargaining Act (Statute covering all local government and selected "state" operations.) • Chapter 41.58 RCW Public Employees Collective Bargaining (Statute which created PERC and provides some general authority and principles.) • Chapter 41.59 RCW Educational Employment Relations Act (Statute covering K-12 certificated employees only.) • Chapter 41.76 RCW Higher Education Faculty Labor Relations (Statute covering faculty labor relations in public four-year institutions of higher education.) • Chapter 41.80 RCW State Collective Bargaining (Statute covering collective bargaining for state civil service employees.)


http://apps.leg.wa.gov/RCW/default.aspx?cite=41.80







http://apps.leg.wa.gov/RCW/default.aspx?cite=28B.52

http://apps.leg.wa.gov/RCW/default.aspx?cite=28B.52



General Management Rights include:

• Direct Work

• Control Staffing and Budget

• Discipline of Employees

• Make Workplace Changes That Do Not Affect Terms and Conditions of Employment

UNFAIR Labor Practices Include:

• Interfere with, restrain, or coerce employees in the exercise of their rights to organize, chose a representative or engage in concerted activity

• Control, dominate or interfere with a bargaining representative

• Discriminate against a state employee who has filed an unfair labor practice charge

• Refuse to engage in collective bargaining negotiations.

KNOW YOUR CBAs! More specifics later…ProACT Law Group, PLLC © 2013

Performance Management

Coaching

Coaching is not corrective and does not involve the Appointing Authority. What is coaching?

The Basic Success Equation:

Aptitude + Attitude + Available Resources

Know How Drive Tools

Skills Confidence Equipment

Ability Enthusiasm Time

Etc. Etc. Etc.

Determines how successful the employee will be!

A Manager’s Guide to Coaching, Emerson and Loehr, 2010

Which is most important?



Coaching

_ _ _ _ _ _ _ _ matters most in Coaching!

What we know:

1. Improved attitude can compensate for deficiencies in Aptitude or Resources.

2. A decrease in Aptitude or Resources often negatively affects Attitude, which can further hinder the Level of Success.

3. But does a negative attitude decrease the level of Aptitude or Resources?

So what does all that mean?

Employee Attitudes are influenced largely by their relationship with their supervisors.

What do we call this? This is the Relational Approach to Management!



Coaching“But I don’t have time to do my job, let alone coach employees!”

Coaching IS your job! It must be accomplished through the lens of CWU’s stated mission.

Ask yourself:

What has employee turnover been like in the last year?

Why do employees leave their jobs?

How much does it cost to replace an employee?

If you ever want to retire, chances are you will have to have a Gen X (born between 1965 and 1980) or Gen Y (born between 1981 and 1995) employee take over.

What matters to them?



Coaching

Think of it this way:

Employees want to be developed. They look to their managers to do that.

Employees will leave that manager if the need is not met (or if they perceive they are treading water or going backward in professional development).

Each time an employee leaves, poor managers cost CWU enormous amounts of money.

Managers must develop employees as well as provide the basics: Direction, Appreciation, Respect and Tools.

Development of employees does not happen unless the manager can increase Aptitude and Attitude

Attitude is best developed through COACHING.



Coaching

Recognize when coaching is most likely to work.

Employees need coaching when they are struggling with Attitude issues like

1. ____________________________________2. ____________________________________3. ____________________________________4. ____________________________________5. ____________________________________

How can you recognize these?



Coaching

Introspective Moment:

Think of your employees or colleagues.

List the issues they spend the most time struggling with:

Look at the list.

How many involve Aptitude? How many involve Tools?

How many involve interpersonal issues and Attitude? These are your opportunities for coaching!

Now list at least one issue, interpersonal conflict, or stressful situation you face at work that does not involve aptitude or tools. (No real names please!)



Coaching

A Coach is someone who:

Helps an employee (Is concerned and want to see the employee)

Reach higher levels (be better in all areas of work)

of effectiveness

By creating a dialogue (by asking questions, listening and offering support)

That leads to Awareness (and helps the employee discover for self how her Attitude is hindering her Level of Success so that)

And Action! (the employee can do something different to be more effective in all areas of work.)

Coaching helps develop confidence, motivation and drive.



Coaching

Coaches focus on Awareness and Action

Awareness and Action = Emotional Intelligence (EI)

Emotional intelligence is Awareness of one’s own thoughts and feelings as well as the thoughts and feelings of others in order to take appropriate action to meet the goal.

Both the Supervisor and the Employee need EI, but it starts with the Supervisor.

In other words, you must know and manage

Your own hot buttons and triggers The hot buttons and triggers of your employees And how and when you push them.

Awareness of what is hindering performance is crucial.

"The task of the leader is to get his people from where they are to where they have not been." — Henry

Kissinger



Coaching

Most people know how to do their job; they just let Attitude get in the way of performance.

Coaching allows the employee to identify what is getting in the way of his or her Success, and design an action plan to fix it.

Common Reactions from Supervisors:

It’s easier for me to just tell the employee what to do; I don’t trust this employee to know what to do; I don’t have time to help build awareness; I am a manager not a therapist; and It’s a waste of time!

"The greatest of faults, I should say, is to be conscious of none."

Thomas Carlyle

Yet most employees, if simply told what to do, will

Become resentful; Adopt a worse Attitude; Just not do it; and Leave, along with their years of knowledge.



Coaching

What if it’s none of the above?

All of the above?


Is Coaching the Right Tool?

Is the issue Aptitude? TEACH the Skill

Is the issue Attitude?

(Confidence, Commitment, Frustration, Enthusiasm, Focus?)

COACH

Is the Issue Tools? Find the RESOURCE


Coaching

Is the issue an outside factor? Outside factors include:

Poor relations with a supervisor or other employee Changing market conditions or agency direction Lack of support or direction from (you) the supervisor?

If so, go through the questions again.

Does the employee have the resources available to deal with the problem?

The Aptitude?

Is it Attitude?

Then COACH!



Coaching

What if you don’t know what the issue is?

ASK!

An employee may give far too many details of a particular situation. If the employee is stuck on giving you a blow by blow account of her interaction with another employee, what should you do?

You don’t have to use the word “coaching” when speaking with an employee. You can ask the employee if he would like to spend a few minutes batting some ideas around, or talking about the situation to figure out how to stop it from driving him crazy.



Coaching

The Coaching Process

Is this a coachable situation?

If yes, Create Awareness that leads to Action

AWARENESS is created through DIOLOGUE. Supervisors must find out what is really going on with the employee, situation or client. What does the employee want to happen?

ACTION can only occur when the employee is aware of what needs to happen and then identifies a PLAN -- what he or she will do to get there.

What is the coach’s job?

What isn’t the coach’s job?


Awareness ACTION


CoachingThe best part about being a Coach is you don’t have to know the answers…you only need to ask the right coaching questions!

Coaching questions open doors so the light can come through and the employee can find a path. What kinds of questions are most effective in coaching?

Good Questions Not so Good Questions



Step by Step Coaching

1. Create Awareness

2. Open the Dialogue to Discover Wants

3. Assess Courses of Action

4. Carve out the Plan

5. Help the Employee Take Charge

AND AFFIRM OVER AND OVER!

Would you rather spend your time asking coaching questions or having to come up with all the answers to solve all the issues and the concerns of every employee?

Competent coaching cuts down on time spent on corrective and disciplinary action, and results in happier, more motivated and

productive employees.



Step by Step CoachingStep 1: Create Awareness

At this stage, it is important to

Not offer solutions or try to fix it Not be judgmental Be curious and try to make it fun Encourage the employee to step back and look at the

bigger picture Help the employee explore the underlying issues

Sample questions:

1. What is stopping you from dealing with the situation?2. What is the consequence of not dealing with it?3. What is the real reason you are having a hard time dealing

with this person or situation?4. How is this situation out of line with what you want to

happen?5. What worries you most about this?6. So what is really going on?7. In what ways are you the biggest obstacle?8. What would you have to say no to in order to have the time

you need?9. How does this situation manage you instead of you

managing it?10. What is it about this that makes you lose sleep?11. Which of your buttons are really getting pushed?12. What might your blind spot be in the situation?13. What is your gut telling you about the situation?




Step 2: Open Dialogue to Discover WantsAt this stage, it is important to

Help the employee identify wants Develop a vision for resolution

Sample questions:

1. If this situation was resolved, what would be different at work?

2. How do you want this to play out?3. What would a real resolution look like?4. What would it take to make you feel really successful in this

situation?5. How would you like people to describe how you moved

forward in this situation?6. If you could do anything you wanted to resolve this, what

would you do? What would it get you?7. What do you value that you are not willing to compromise

to resolve this?8. How would this have to play out for you to feel good about

your part in it?9. What does success look like in this situation?10. What qualities will you have to demonstrate to have this

turn out the way you want?11. What other ideas do you have about what you want?




Step 3: Assess Courses of ActionAt this stage, it is important to

Encourage possible solutions and choices Brainstorm ideas but not details Don’t move on until you have identified 3-5 good,

possible actions

Start by saying something like, “Sounds like you are off to a great start already and you have a good idea of where you want to go with this. Let’s talk about what that looks like.”

Sample questions:

1. What are some possible solutions?2. What are angles to consider?3. What is the easiest thing to do here? What if you do that?

What if you don’t?4. What conversations do you need to have to get what you

want? What conversations haven’t you had that might be helpful?

5. What might be another way to solve this?6. What would happen if you chose that solution?7. What have you tried so far that has (has not) worked?8. What would be the hardest road to take?9. What might get in the way of your solution?

10. What would this look like if it was easy and fun?11. What solution do you want to avoid and why?




Step 4: Carve out the Plan At this stage, it is important to

Help the employee develop a realistic plan Make sure the plan is doable

Start by saying something like, “You have identified some great possibilities. How about we narrow it down to one and talk about how to really make it happen?”

Then always ask these two questions:Which solution gets you closest to what you want?Which one do you think you should pursue?

Sample questions:

1. What is the most important part of the plan to execute?2. Who else could you bring in to help execute the plan? What

would that person add?3. What information don’t you have that you will need? Where

will you get it and from whom?4. What do you need to know about your solution that you don’t

know already?5. What are you going to do to start moving forward?6. What ripples might your solution create? How will you deal

with them?7. What worries you about your solution? How will you deal with

that?8. How can you make this as easy as possible?


Performance Management Step by Step Coaching

Step 4: Carve out the Plan, Continued

9. How will you tell others about it?10. How will you know it is a great success?11. How will you get feedback? What will you do if the feedback

is less than positive? What will that tell you?12. What is the first step?13. In what ways does that get you what you want?

Remember to Keep asking until a clear plan emerges. Take notes. And AFFIRM along the way.

Affirming is the act of acknowledging what the employee says and does, and offering support and validation during the coaching process. It can be used anytime to inspire, encourage and motivate!

Example:

I know this has been a stretch for you, and you have really stepped up to the challenge. You are determined and persistent, and it is paying off. Those are qualities of a good leader. Keep it up!

Besides asking questions and listening, take notes. You will help hold the employee accountable for the plan.




Step 5: Help the Employee Take ChargeAt this stage, it is important to

Help the employee follow through and keep commitments

Have the employee identify how he will take charge of the Action Plan, and how you can help

Sample questions:

1. How will you ensure you stay on task?2. How will you let me know your progress?3. What should I do if I don’t see you taking action?4. How will you motivate yourself to move forward?5. At what stage do you tend to lose motivation? What will you

do to make sure that doesn’t happen?6. What will you do if an obstacle you have not anticipated

comes up?7. What resources do you need to be successful?8. How can I best support/run defense for you?9. How often and when should we check in together?10. How will you know if you are successful?11. What will you have to say no to in order to make this happen? 12. What is the best way I can motivate you?13. Who else can you talk to who will help hold you accountable

to your plan?

End with: What will you do, by when, and how will I know?



Coaching

Successful Coaches

Rely on instinct Believe the employee can succeed Stay unattached but supportive Keep asking questions Don’t know the answer Never try to fix it Do follow up with the employee Think fun, fun, fun! Don’t move to action until sure the employee has a strong

awareness of the underlying issues. Affirm, Affirm, Affirm!

"You do not lead by hitting people over the head — that's assault, not leadership."

— Dwight D. Eisenhower

GO COACH! YEAH TEAM!



CoachingPractice Makes Perfect

Think about the situation you identified on page 22 that you currently face.

Find with a partner who is not in your department, or who will not be able to identify the parties involved in your scenario.

Using the materials and questions on the previous pages, coach your partner through to a solution. You will have adequate time to practice so please do not rush!

Use the following page to take notes. STOP when the first person has worked through all the steps.

Resist the urge to TELL your partner what to do. Coaches do not comment, judge or direct! Let your partner steer the boat.

“Whatever course you decide upon, there is always someone to tell you that you are wrong. There are always difficulties arising which tempt you to believe that your critics are right. To map out a course of action and follow it to an end requires courage.” Ralph Waldo Emerson


http://thinkexist.com/quotation/whatever_course_you_decide_upon-there_is_always/14528.html




Coach and Be CoachedNote Taking/Practice Page



Corrective ActionCoaching vs. Corrective Action – Counseling

A Coach

Asks questions so the employee becomes aware of the issue.

Provides the environment that allows the employee to explore solutions, decide unilaterally what needs to be done and make a plan to accomplish it.

In Counseling

The supervisor is aware of the issue needing correction through some degree of fact gathering.

The supervisor communicates the issue (facts) to the employee.

Through steps outlined below, the supervisor and the employee reach an agreement as to how the employee will correct the issue.

The supervisor controls the conversation with employee input used to develop the plan.

A key element is the employee’s understanding of what the employee must do to correct deficiencies, and a timetable in which to correct.

KEEP JUST CAUSE IN MIND WHEN IMPLEMENTING

CORRECTIVE ACTION PLANS! MORE LATER…



Corrective Action

Is it legal? Is it smart?

While Just Cause principles must be applied to disciplinary situations, it is never a bad idea to follow those same principles when asking an employee to correct.

Corrective Action is typically p r o g r e s s i v e . Document FACTS not conclusions, opinions, or judgments Be aware of double j e o p a r d y . Discover the facts before you correct Make sure you PLAN the Corrective Action. Be Prepared.

What role does confidentiality play?

What about the employee who wants to turn the corrective action session into a discussion about another employee’s performance?

What other interesting or difficult situations might you encounter while attempting to take corrective action?



Corrective ActionIs a supervisor required to start at the lowest level of corrective action and move up one step at a time?

Before Taking Corrective Action or Discipline, consider:

1. How long the employee has been in state service;

2. Whether mitigating or aggravating circumstances exist;

3. What past performance evaluations reflect;

4. Seriousness of incident, problem, issue;

5. Whether this is a first time or repeat offense;

6. Any corrective action taken previously;

7. Other employees who committed similar infractions and how they were treated;

8. How the offending employee was made aware of the rule that was violated;

9. Whether the employee understood the rule;10. Whether the rule or order was reasonable;

11. If misconduct was investigated, were other similar investigations of misconduct conducted in the same manner with the same level of effort;

12. Who else needs to be made aware of the situation; and

13. Specific provisions of the CBA that might affect any action taken.



Corrective ActionGeneral Guidelines for Verbal Counseling

1. Determine if the rule, procedure or performance standard was not known or understood;

2. Reaffirm the rule, procedure or performance standard;

3. Ask about the reason for the violation;

4. Explain why the issue must be corrected; and

5. Advise the employee that if not corrected, further corrective action or discipline will occur up to and including termination.

DOCUMENT each of these minimum steps even if you are just conducting a verbal counseling!

What else should your documentation include?

How long do you keep it? CWU’s record retention policy is….

Where do you keep it? WHAT ABOUT SUPERVISORY FILES???


Performance Management Corrective Action

General Guidelines for Written Counseling

• Counsel the employee regarding the applicable performance standard and the reasons his/her performance is not meeting the standard. Use facts not conclusions, judgments or opinions.

• Always measure an employee against the standard, not against other employees!

• Explain the importance of correcting the deficiencies.

• Reset expectation and where that expectation is found. Always note where the employee first learned of the expectation or standard to be followed.

• State when the issue will be revisited, and what the consequence will be for a failure to improve.

• Document!

• Invite the employee to respond in writing, and inform the employee his/her comments will be included in the personnel file along with the written counseling.

• Give the employee a copy of the written counseling memo.

• Have the employee sign it. Keep a copy in desk file and one in personnel file.

Good management is the art of making problems so interesting and their solutions so constructive that everyone wants to get to work and deal with them. Paul Hawken


http://www.brainyquote.com/quotes/quotes/p/paulhawken402032.html

Performance Management Corrective Action

CORRECTIVE ACTION STEPS

1. Issue/Facts

Explain to the employee why you have called this meeting. Use facts, not conclusions or labels to explain the behavior in need of change.

2. Expectation

Show the employee the rule, policy or procedure his or her behavior violated, and be sure to discuss when and where that expectation was set or communicated to him previously.

3. Employee Input

Ask the employee to tell you her side of the story, or explain the situation as she sees it. Allow the employee input into the conversation and listen to the employee’s perspective. Be respectful and a good listener. Do not get sidetracked by the employee who begins to talk about the issues of other employees. Steer the conversation back with as statement such as, “Just as I never discuss your performance issues with other team members, it is not appropriate for me to discuss theirs with you. We are here to talk openly and honestly about what is going on with you.”



Corrective ActionCORRECTIVE ACTION STEPS, Continued

4. Problem

Ask how the employee will comply with the expectation or solve the problem or issue going forward. Document this in the Solve/Record section. Employees who offer or design the solution are far more likely to adhere to it. Make sure you mirror it back so you know you understand how the employee will comply in the future.

5. Action Steps

Explain that you are giving the employee a verbal counseling; a written reprimand, whatever, and you fully believe the employee will correct.

Make a Contract: Since the employee is offering to do something to correct, you should commit to the employee by offering something in return. It should be something of value to the employee, like reflecting the positive change on his or her next performance review, or offering to get the employee the tools he believes he needs to get on track. It can even be a schedule change or speaking to another employee to get information to this employee earlier. Be creative but be sure you follow through!



Corrective Action

CORRECTIVE ACTION STEPS, Continued.

5. Action Steps, Continued.

Timetable: Have the employee tell you a reasonable time for her to correct. It may be immediately; it may be next month. Use what makes sense and schedule a time to revisit the issue so you, the supervisor can give kudos to the employee who corrected! Ex: Let’s meet 2 weeks from today to make sure we are both on track. Two weeks from today I fully expect to be patting you on the back for a job well-done!

6. Consequences

For Breach of Contract: You MUST tell the employee what the consequence of his or her failure to correct will be. In other words, provide a next step consequence. If the next step in the process is that another violation of the rule could lead to discipline, up to and including termination, you must say that!

A sample Performance Action Worksheet is provided. Use it as your conversational guide! Feel free to rename it, or change it if necessary.



Correct These Actions!

Everyone who's ever taken a shower has an idea. It's the person who gets out of the shower, dries off and does something about it who makes a difference. Nolan Bushnell


http://www.brainyquote.com/quotes/quotes/n/nolanbushn130640.html


Just CauseDaugherty and the Original Language of the Seven Tests

What are the seven Just Cause Principles?

1. NOTICE:

Did the Employer give to the employee forewarning or foreknowledge of the possible or probable consequences of the employee’s disciplinary conduct?

2. REASONABLE RULE OR ORDER:

Was the Employer’s rule or managerial order reasonably related to: (a) the orderly, efficient, and safe operation of the Employer’s business, and (b) the performance that the Employer might properly expect of the employee?

3. INVESTIGATION:

Did the Employer, before administering the discipline to an employee, make an effort to discover whether the employee did in fact disobey a rule or order of management?



Just CauseDaugherty and the Original Language of the Seven Tests

4. FAIR INVESTIGATION:

Was the Employer’s investigation conducted fairly and objectively?

5. PROOF:

At the investigation, did the judge obtain substantial evidence or proof that the employee was guilty as charged?

6. EQUAL TREATMENT:

Has the Employer applied its rules, orders and penalties even handedly and without discrimination to all employees?

7. PENALTY:

Was the degree of discipline administered by the Employer reasonably related to (a) the seriousness of the employee’s proven offense, and (b) the record of the employee in his service with the employer?



Just CauseInvestigation and Proof

All Sides to the Dispute Must be Considered!- Must the investigator talk to the grievant?

Get the Reason: Do not brush off the explanation! Notice: Must be understandable (and understood),

specific, and in an acceptable form.

Full, Fair and Objective Investigations

Talk to all material witnesses Always ask who else might corroborate the witness’s version of

events; Follow up with witnesses when needed. Obtain all Documentary, Physical, and Medical Evidence Ask what evidence is available to substantiate witness’s

version of events; Know if proof problems exist.

The Timeliness Requirement

Investigate before discipline; Lack of reaction to events later characterized as serious enough to

warrant discipline viewed with distrust.



Just CauseThe OBJECTIVE requirement in the FAIR Investigation

For it to be objective, management must ensure as much available evidence as possible is collected and that evidence is carefully examined from the perspective of a disinterested third party.

Due Process – At a Minimum as Provided for in CBAs

Right to be informed of the charges Right to confront accusers Right to answer charges Right to counsel (i.e., union representation)

Remedy for procedural due process violations = more likely to overturn discipline when the employee’s interests have been prejudiced in some way.

Other Constitutional Rights

4th Amendment: Right against unreasonable searches and seizures

5th Amendment: Right against self-incrimination in criminal matters



Just CauseWhat proof do you need according to the Personnel Resources Board? You must be able to show:

1. whether the employee was aware of the expectations, rules, or policies allegedly violated,

2. whether the employee was aware of the need to comply with the rule or policy or to improve performance,

3. whether the employee had an opportunity to demonstrate compliance or improvement,

4. whether the discipline was imposed for good reason,

5. whether the disciplinary process and procedures followed were appropriate, and

6. whether the sanction imposed was sufficient to prevent recurrence, to deter others from similar misconduct, and to maintain the integrity of the program.

The Personnel Resources Board has commonly applied JUST CAUSE to ALL disciplinary cases!

Oliver v. Employment Security Department, PRB Case No. R-DEMOProACT Law Group, PLLC © 2013


Coach, Correct or Discipline?

Due Process is generally considered to mean the employee must be given NOTICE of the charges against her and an opportunity to be heard (to respond).

But remember, the following state employees are NOT necessarily entitled to full due process rights:

Exempt from Civil Service (“at-will”) WMS Temporary Probationary

CWU supervisors are generally able to conduct Coaching and implement Corrective Action without running afoul of due process rights, but only an Appointing Authority can discipline. Consult your Collective Bargaining Agreements!

Corrective Action includes: Discipline Includes:

Verbal counseling DemotionVerbal warning SuspensionWritten warning Reduction in PayCorrective Action plan Discharge (Performance Evaluation) Oral Reprimand*_______________________ Written Reprimand*

* Some CBAs consider Oral and Written Reprimands to be discipline. Supervisors do not need an Appointing Authority to do them, but Oral Reprimands must be identified as such. Special JUST CAUSE language may be needed! Consult with Human Resources!


Performance Management Investigate before Discipline

Must you conduct an investigation into alleged misconduct of a represented employee before administering discipline?

Can you use the Performance Action Worksheet?

During any employee investigation, distinguish between:

Personal Knowledge Inferences Speculation Opinion

● Differentiate what the witness was told by another or learned later.

● Remember the applicable standard of proof.

● Use IRAC to determine whether or not a rule was violated.

I

R

A

C

How we think shows through in how we act. Attitudes are mirrors of the mind. They reflect thinking. David Joseph Schwartz


http://www.brainyquote.com/quotes/quotes/d/davidjosep125672.html


Constitutional Considerations in Discipline14th Amendment: Remember Just Cause Applies in discipline

cases, as do Weingarten and Garrity!

Weingarten Rights

Union representative or coworker may be present during an investigative interview if the UNION employee reasonably believes the investigation may lead to discipline;

• Applies only to unionized employees;

• Investigator under no duty to tell employee of right; and

• Union representative acts as observer, not participant.

The Garrity Rule

Applies in employee misconduct investigations;

• Investigator may not “compel” employee to disclose information during an internal investigation that might later be used to prosecute the employee;

• Cannot tell employee to confess or be terminated; and

• Evidence excluded in later proceeding if rule violated.


Performance Management Determining Discipline

Keep in mind the 6th and 7th Just Cause Tests:

6 th Just Cause Test: Equal Treatment

Has the Employer applied its rules, orders and penalties even handedly and without discrimination to all employees?

• Alexander v. Gardner-Denver Co., 415 U.S. 36, 7 FEP Cases 81 (1974)

• Were similarly situated employees treated alike?

• Who/What are the comparators?

7 th Just Cause Test: Penalty

Was the degree of discipline administered by the Employer in a particular case reasonably related to: (a) the seriousness of the employer’s proven offense and (b) the record of the employee in his or her service with the Employer?

• Penalty = punishment imposed for breach of rule

• Did the investigation uncover enough facts to support the penalty imposed?

• Does penalty comport with provisions of the Collective Bargaining Agreement?


Performance Management Discipline

When you discipline, be sure you

1. Follow the CBA if applicable2. Review and use all you learned about Corrective Action3. Understand what Just Cause requires4. Are consistent5. Are objective6. Don’t get sidetracked by talking about other employees7. Base the decision on performance, not protected classes8. Focus on facts9. Be able to articulate why the discipline was Legal and

Smart10. Don’t retaliate11. Get help from Human Resources12. Consider the underlying reasons for performance issues. If

it might involve a disability, FMLA or frequent absences, get help from Human Resources

13. Deal with dangerous, i.e., health and safety issues immediately

14. Keep it confidential!15. Comply with all deadlines and date requirements.16. Document, document, document!

Obstacles are things a person sees when he takes his eyes off his goal.

E. Joseph Cossman


http://www.brainyquote.com/quotes/quotes/e/ejosephco120879.html


DisciplineSupervisors beware!

RCW 41.06.196

Employee performance evaluations — Termination of supervisors tolerating inadequate employee performance.

The director shall adopt rules designed to remove from supervisory positions those supervisors who in violation of the rules adopted under RCW 41.06.186 have tolerated the continued employment of employees under their supervision whose performance has warranted termination from state employment.[2002 c 354 § 216; 1993 c 281 § 33; 1985 c 461 § 6.]


http://apps.leg.wa.gov/rcw/default.aspx?cite=41.06.186


WAC 296-126-050Employment records.

(1) Every employer shall keep for at least three years a record of the name, address, and occupation of each employee, dates of employment, rate or rates of pay, amount paid each pay period to each such employee and the hours worked.

(2) Every employer shall make the record described in subsection (1) available to the employee, upon request, at any reasonable time.

(3) Every employer shall, within ten business days of receiving a written request by a former employee, furnish a signed written statement stating the reasons for and effective date of discharge.

Note: Additional recordkeeping requirements for employers are stated in WAC 296-128-010 through 296-128-030 (rules regarding recordkeeping for employers subject to the Minimum Wage Act, chapter 49.46 RCW) and WAC 296-131-017 (rule regarding recordkeeping for agricultural employers).

[Statutory Authority: Chapter 49.12 RCW. 10-04-092, § 296-126-050, filed 2/2/10, effective 3/15/10. Statutory Authority: RCW 43.22.270, 49.12.020, 49.12.091, 49.12.050, 49.46.020 and 49.46.070. 89-22-016 (Order 89-16), § 296-126-050, filed 10/24/89, effective 11/24/89; Order

74-9, § 296-126-050, filed 3/13/74, effective 4/15/74.]

The reasons stated must be the REAL reasons! Consult HR!!


RCW 49.44.010


http://apps.leg.wa.gov/RCW/default.aspx?cite=49.46.070







http://apps.leg.wa.gov/wac/default.aspx?cite=296-131-017




Blacklisting — Penalty.Every person in this state who shall willfully and maliciously, send or deliver, or make or cause to be made, for the purpose of being delivered or sent or part with the possession of any paper, letter or writing, with or without name signed thereto, or signed with a fictitious name, or with any letter, mark or other designation, or publish or cause to be published any statement for the purpose of preventing any other person from obtaining employment in this state or elsewhere, and every person who shall willfully and maliciously "blacklist" or cause to be "blacklisted" any person or persons … for the purpose of preventing such person from securing employment, or who shall willfully and maliciously make or issue any statement or paper that will tend to influence or prejudice the mind of any employer against the person of such person seeking employment, or any person who shall do any of the things mentioned in this section for the purpose of causing the discharge of any person employed … shall, on conviction thereof, be adjudged guilty of misdemeanor and punished by a fine of not less than one hundred dollars nor more than one thousand dollars, or by imprisonment in the county jail for not less than ninety days nor more than three hundred sixty-four days, or by both such fine and imprisonment.

[2011 c 96 § 42; 1899 c 23 § 1; RRS § 7599.]

Performance Management The Performance Development Plan

The PDP


• the standardized performance form

• used for all civil service and exempt employees

• establishes key responsibilities and competencies

• sets performance expectations

• identifies training and development needs

• view as a “living document” to be updated

• copy of the initial PDP must be submitted to HR for inclusion in employee’s personnel file

• 360° review optional; HR available to assist

• see sample PDP and 360° review forms and instructions in Appendix A

• supervisors must develop a performance management plan for civil service employees during probationary, trial service, and transition review periods, then annually thereafter

• exempt (from civil service) employees must be assessed annually in June or July

Performance Management The Performance Development Plan

When creating the PDP, remember


• set clear expectations within CWU policies

• do not ignore performance issues

• evaluate against the job expectations, not the performance of others

• document honestly and regularly

• communicate both positive feedback and problems

• provide training opportunities

• identify challenges for each employee

• be aware of stereotypes and prejudices in the evaluation of skills, knowledge and abilities

• evaluate on job related criteria

• do not over-praise; most employees meet expectations

• focus on specific, objective goals

• document facts, not conclusions or opinions

• be fair, even-handed and consistent

Performance ManagementEmployee Personnel Files


CWU Policy: An employee has the right to inspect, or have his/her designated representative inspect, his/her personnel file.

CWU Policy: An employee may also obtain a copy of his/her personnel file from HR.

The right to access to personnel files is authorized by

• Contract Article 33- Employer Files for Classified Staff in Bargaining Unit 1

• Contract Article 35- Personnel Files for Classified Staff in Bargaining Units 3, 4, 5 and 6

• WAC 357-22-020 for non-represented Classified Staff

• RCW 49.12.240 permits employee inspections of personnel files at least annually

• RCW 49.12.250 gives the employee the right to request removal of “irrelevant or erroneous” information in the file, and to place a rebuttal or correction in the file if the information is not removed

• RCW 49.12. 240 and 250 do not apply to records of an employee relating to investigation of criminal offense

Performance Management Inspire and Motivate!


Study after study, and book after book, tout the message that motivating by FEAR is the WORST approach.

How can you tell if you are using FEAR as a motivator?

1. Do my employees look happy to see me?

2. Do my employees smile most of the time?

3. Do my employees make eye contact with me?

4. Do I feel my employees have my best interest at heart? Do they have my back?

If you answered no, your team is underachieving. Period. Make sure you turn out the lights. You will be the last person to leave. Fear based management doesn’t work.

“I've learned that people will forget what you said, people will forget what you did, but people will never forget how you made them feel.” Maya Angelou



http://thinkexist.com/quotation/i-ve_learned_that_people_will_forget_what_you/341107.html

http://thinkexist.com/quotation/i-ve_learned_that_people_will_forget_what_you/341107.html

A Clear Message to Senior Management:

The bad news: You are part of the problem why your employees are not performing at peak levels.

The good news: You are key to the solution!

A Global Workplace Study by Tower Perrin that included nearly 90,000 employees from 18 countries confirmed that the single most important driver of employee discretionary effort is “senior management’s sincere interest in employee well-being.”

Three things Senior Management must do to significantly increase levels of discretionary effort by employees:

1. Communicate openly and honestly1. Be visible and accessible2. Show support for new ideas.

Senior management functions as role models, particularly when it comes to allowing employees to communicate input and ideas freely and without fear of retribution. Open communication and visibility are KEY.

The result of fear-based management is a workplace replete with employees who cannot find work elsewhere. Good employees leave, and go where they feel valued.

Instant Turnaround!, Harry Paul and Ross Reck, Ph.D, 2009

Performance Management A Word about Leadership


"The respect that leadership must have requires that one's ethics be without question. A leader not only stays above the line between right and wrong, he stays well clear of the gray areas."

— G. Alan BernardPresident, Mid Park, Inc

Basic Truisms about Supervisors:

Employees perceive your position of power to be greater than you think.

The stronger your statement + the higher your position = the bigger the impact, both good and bad.

Managers who are good Leaders provide four basic things for employees -

Direction

Appreciation

Respect and

Tools to do the job.

What you consider adequate Direction, Appreciation, Respect and Tools to do the job may not be adequate in the eyes of your employees.

From Winning with the Employee from Hell, Shaun Belding, 2004



So what works?

Coaching. Open dialogue where employees feel free to grow, explore and create solutions without being told how, what and when to do something.

A real TEAM approach. Don’t call them your “TEAM” unless you are willing to listen and take input from them. Do not drop bombshell announcements or decisions on individuals or the team before they have had time to get excited about the change, or at least understand the reasons for change.

Fierce Conversations. Identify the gaps between CWU’s stated goals and expectations for employees and what is REALLY going on. Don’t bury your head in the sand. Fix it!

Motivate individually. Ask what motivates each employee. Just because two people are the same age, gender, race, religion, whatever does NOT mean the same things motivate each. Respect the individual and take the time to learn what motivates each of your employees!

Day to Day Recognition. It must be is Frequent, Specific and Timely as outlined in The Carrot Principle, Adrian Gostick and Chester Elton, 2007.

Be a Good Role Model. If you cut corners, employees will follow suit. If you ignore problems, your employees will do the same. But if you make it clear you take CWU’s mission seriously, so will your employees. If quality and managing risk matter to you, they will matter to your employees. Practice what you preach!

RECRUITMENT AND SELECTION

HIRE WITH PURPOSE!ProACT Law Group, PLLC © 2013

The Big Picture… Wait! What is the Big Picture?

What makes a “good” hire?

A “not so good” hire?

Be able to identify the goal of each hire. If you don’t know what you want, you don’t know what you will get!

Always Think: Is it legal? Is it smart?

“If you think hiring professionals is expensive, try hiring amateurs.” Thinkexist.com

Managing Expectations Matters! “Organ Rejection*” Theory

What is meant by cultural fit? Can you consider subjective criteria?

* “Organ rejection” is a term coined by Eric Herrenkohl in his 2010 book “How to Hire A-Players.”


WSHRC PRE-EMPLOYMENT ADVERTISING GUIDELINES


Language advertising a job opening should describe the job in gender neutral terms. WAC 162.16.260

Policeman = _____________

Repairman= _____________

Language advertising a job opening must also contain non-discriminatory terms or terms that do not suggest a preference for a protected group:

Clean cut (revise to) _____________

Recent grad/ college student (revise to) _____________

What protected classes might these terms imply?

Can you use the term “Equal Opportunity Employer” or indicate you encourage workplace diversity? See WAC 162-16-290.


PRE-EMPLOYMENT ASSESSMENTS AND TESTING


Note: All assessment tools used to make employment decisions, regardless of their format, level of standardization, or objectivity, are subject to professional and legal standards. For example, both the evaluation of a resume and the use of a highly standardized achievement test must comply with applicable laws. Assessment tools, used solely for career exploration or counseling, are usually not held to the same legal standards.

Resource: Contact the Department of Enterprise Services for assistance and information on where to turn for help when designing legal and smart assessment tools, especially if your agency does not have an internal recruiting personnel or human resources.

Resource: Information regarding organizations involved with personnel assessment can be found at the International Personnel Management Association (IPMA) sites: www.ipmaac.org/ and www.ipma-hr.org/

Resource: The Occupational Information Network (or O*NET; www.doleta.gov/programs/onet/ and www.onetcenter.org/) is the nation’s primary source for occupational exploration and information. O*NET provides comprehensive information on job requirements and worker competencies for over 1100 occupations. This Guide (Testing and Assessment: An Employer's Guide to Good Practices), as well as other guides in this series are available for downloading from the above Web sites. The testing and assessment guide has links to all major legislation prior to 2000.


PRE-EMPLOYMENT INQUIRY GUIDELINES


WAC 160-12-140 sets forth what can and cannot be asked pre-employment. These rules apply to:

• Job application forms

• Pre-employment interviews

• Any other type of inquiry made of job applicants

• Inquiries made to persons other than an applicant

• Inquiries made by third parties (Ex: credit reporting service)

Exceptions: Bona fide occupational qualifications (BFOQ);

A voluntary affirmative action plan that meets certain guidelines (ex: WAC 162-12-160); or

Required by federal law (see WAC 162-12-150).

The rules do not apply after a person is employed. See WAC 162-12-180.


PRE-EMPLOYMENT INQUIRY GUIDELINES


http://apps.leg.wa.gov/WAC/default.aspx?cite=162-12-180



(Reprinted from WSHRC Website)

WAC 162-12-140 (3)

The following examples of fair and unfair pre-employment inquiries define what is an unfair practice under RCW 49.60.180(4) and 49.60.200. These examples, however, are not all inclusive. All pre-employment inquiries that unnecessarily elicit the protected status of a job applicant are prohibited by these statutes irrespective of whether or not the particular inquiry is covered in this regulation.

SUBJECT FAIRPREEMPLOYMENT INQUIRES

UNFAIRPREEMPLOYMENTINQUIRES

a. Age Inquiries as to birth date and proof of true age are permitted by RCW 49.44.090.

Any inquiry not in compliance with RCW 49.44.090 that implies a preference for persons under 40 years of age.

(For age discrimination, RCW 49.44.090 must be read in conjunction with RCW 49.60.180 and 49.60.200. RCW 49.44.090 limits age discrimination coverage to persons 40 years of age and older, and makes other limitations and exceptions to the age discrimination law.)



b. Arrests

(see also

Because statistical studies regarding arrests have shown a disparate impact on some racial

Any inquiry that does not meet the requirements for fair










Convictions) and ethnic minorities, and an arrest by itself is not a reliable indication of criminal behavior, inquiries concerning arrests must include whether charges are still pending, have been dismissed, or led to conviction of a crime involving behavior that would adversely affect job performance, and the arrest occurred within the last ten years. Exempt from this rule are law enforcement agencies and state agencies, school districts, businesses and other organizations that have a direct responsibility for the supervision, care, or treatment of children, mentally ill persons, developmentally disabled persons, or other vulnerable adults. See RCW 43.20A.710; 43.43.830 through43.43.842 ; and RCW 72.23.035.

pre-employment inquiries.



c. Citizenship Whether applicant is prevented from lawfully becoming employed in this country because of visa or immigration status. Whether

Whether applicant is citizen. Requirement before job offer that applicant present birth certificate, naturalization or





http://apps.leg.wa.gov/RCW/default.aspx?cite=43.20A.710

applicant can provide proof of a legal right to work in the United States after hire.

baptismal divulge applicant's lineage, ancestry, national origin, descent, or birth place.

d. Convictions (see also Arrests)

Statistical studies on convictions and imprisonment have shown a disparate impact on some racial and ethnic minority groups. Inquiries concerning convictions (or imprisonment) will be considered to be justified by business necessity if the crimes inquired about relate reasonably to the job duties, and if such convictions (or release from prison) occurred within the last ten years. Law enforcement agencies, state agencies, school districts, businesses and other organizations that have a direct responsibility for the supervision, care, or treatment of children, mentally ill persons,

Inquiries concerning convictions and imprisonment which either do not relate reasonably to job duties or did not occur within the last ten years will not be considered justified by business necessity.



d. (continued) developmentally disabled persons, or other vulnerable adults are exempt from this rule. See RCW 43.20A.710;43.43.830



http://apps.leg.wa.gov/RCW/default.aspx?cite=43.20A.710

through43.43.842 ; and RCW 72.23.035.

e. Family Whether applicant can meet specified work schedules or has activities, commitments or responsibilities that may prevent him or her from meeting work attendance requirements.

Specific inquiries concerning spouse, spouse's employment or salary, children, child care arrangements, or dependents.

f. Disability Whether applicant is able to perform the essential functions of the job for which the applicant is applying, with or without reasonable accommodation. Inquiries as to how the applicant could demonstrate or describe the performance of these specific job functions with or without reasonable accommodation. Note: Employers are encouraged to include a statement on the application form apprising

Inquiries about the nature, severity or extent of a disability or whether the applicant requires reasonable accommodation prior to a conditional job offer. Whether applicant has applied for or received worker's compensation. Also any inquiry that is not job related or consistent with business necessity.



f. (continued) applicants that if they require accommodation to complete the application, testing or interview process, to please contact the




employment office, personnel or human resources department or other office as may be able to assist them.

g. Height and Weight

Being of a certain height or weight will not be considered to be a job requirement unless the employer can show that all or substantially all employees who fail to meet the requirement would be unable to perform the job in question with reasonable safety and efficiency.

Any inquiry which is not based on actual job requirements and not consistent with business necessity.

h. Marital Status (see also Name and Family)

None. ( ) Mr.( ) Mrs.( ) Miss( ) Ms.Whether the applicant is married, single, divorced, separated, engaged, widowed, etc.



i. Military Inquiries concerning education, training, or work experience in the armed forces of the United States.

Type or condition of military discharge. Applicant's experience in military other than U.S. armed forces.


Request for discharge papers.

j. Name Whether applicant has worked for this company or another employer under a different name and, if so, what name. Name under which applicant is known to references if different from present name.

Inquiry into original name where it has been changed by court order or marriage. Inquiries about a name that would divulge marital status, lineage, ancestry, national origin or descent.

k. National Origin

Inquiries into applicant's ability to read, write and speak foreign languages, when such inquiries are based on job requirements.

Inquiries into applicant's lineage, ancestry, national origin, descent, birthplace, or mother tongue. National origin of applicant's parents or spouse.

l. Organizations

Inquiry into organization memberships, excluding any organization the name or character of which indicates the race, color, creed, sex, marital status, religion, or national origin

Requirement that applicant list all organizations, clubs, societies, and lodges to which he or she belongs.



l. (continued) or ancestry of its members.

m. May be requested after hiring for Request that applicant submit


Photographs identification purposes. a photograph, mandatorily or optionally, at any time before hiring.

n. Pregnancy (see also Disability)

Inquiries as to duration of stay on job or anticipated absences which are made to males and females alike.

All questions as to pregnancy, and medical history concerning pregnancy and related matters.

o. Race or Color

None. See WAC 162-12-150, 162-12-160, and 162-12-170.

Any inquiry concerning race or color of skin, hair, eyes, etc., not specifically permitted by WAC 162-12-150, 162-12-160, and 162-12-170.

p. Relatives Name of applicant's relatives already employed by this company or by any competitor.

Any other inquiry regarding marital status, identity of one’s spouse, or spouse’s occupation is considered unfair practices in accordance with WAC 162-12-150.

(While the law does not prohibit company policies governing the employment of relatives, any policy that has the effect of disadvantaging minorities, women, married couples, or other protected classes, would be in violation of the law unless it is shown to serve a necessary business purpose.) See WAC 162-12-150, 162-12-160, and 162-12-170.

q. Religion or Creed

None. Inquiries concerning applicant's religious preference, denomination, religious affiliations, church,














parish, pastor, or religious holidays observed.

r. Residence Inquiries about address to the extent needed to facilitate contacting the applicant.

Names or relationship of persons with whom applicant resides. Whether applicant owns or rents own home.

s. Sex None. Any inquiry concerning gender is prohibited.

[Statutory Authority: RCW 49.60.120(3). 00-01-177, § 162-12-140, filed 12/21/99, effective 1/21/00; 96-21-054, § 162-12-140, filed 10/14/96, effective 11/14/96; Order 19, § 162-12-140, filed 1/20/75; Order 18, § 162-12-140, filed 1/20/75; Order 16, § 162-12-140, filed 5/22/74; Order 9, § 162-12-140,

filed 9/23/71; Order 8, § 162-12-140, filed 6/22/70; § 162-12-140 and chart, filed 10/23/67.]


ASK QUESTIONS THAT ELICIT INFORMATION!

Resource: Some amazing questions come from a book that was published 2009 called: 96 Great Interview Questions to Ask Before You Hire, by Paul FalconeProACT Law Group, PLLC © 2013


Setting up an effective Reference Check.

The best indicator of future performance is _______________.

How then, do you get a candidate to give you information for a fabulous reference check?

The gold mine: The candidate tells you of a past accomplishment. You respond, “Tell me more!” The candidate continues with details that are positively glowing.

Now what?

Do I need permission in writing? How do I get it?

What is the million dollar reference check question?

A rule of thumb: Only ask questions of references that you have asked the candidate. Keep it job related.


Failure to Hire Claims

Proving a Failure to Hire Claim

Step 1: Generally, Plaintiff Must Show:


1) He/She is member of a Protected Class; 2) Applied for and was Qualified for the Job;3) Was Not Hired; and 4) The Job Remained Open or a Person Outside the

Protected Class was Hired instead.

Food for Thought…

Rate the importance of

1. Accurate recruiting advertisements

2. Accurate position descriptions

3. What is said by everyone in an interview

4. Interview notes

5. Knowing what you want in an applicant

6. Scoring applicant responses

What role does public disclosure play in hiring?


Failure to Hire Claims

THE LEGAL LANDMINES


Step 2: Once the Plaintiff sets forth a Prima Facie Case, the Agency must articulate Legitimate, Non-Discriminatory Business Reasons for its action (or inaction).

What is a “legitimate business reason?”

Is that the end of the story? NO!

Step 3: The Plaintiff has one more chance to prove discrimination in hiring by showing that the University’s Legitimate, Non-Discriminatory Business Reasons are PRETEXT (i.e., not true or believable).

What evidence might an unsuccessful candidate put forth to show pretext?

The Key: Keep Decisions JOB-RELATED!

And if you are not sure whether an action you are about to take in the hiring process may present a problem in the future, ASK! Human Resources, Agency Recruiting Staff, your AAG, and Supervisors are there to assist you!

COMPENSATION PRACTICES

Overview of Wage and Hour Law

FEDERAL: Fair Labor Standards Act (FLSA)


• Established in 1938

• Sets minimum wage, overtime standards, working conditions, recordkeeping, requirements, and child labor laws for those covered by the FLSA

• Garcia v. San Antonio Metro. Transit Authority, 1985, made clear public employees are covered by the FLSA

• FLSA is administered by the U.S. Department of Labor.

• Original purpose was to stimulate economic recovery post Great Depression and protect workers

• Employees may be exempt from the overtime provisions of the FLSA (and state law) if they meet the criteria set forth for Executive, Administrative, Professional and Computer exemptions.

Note the term “exempt” under the FLSA is different from the term “exempt” from civil service!



State Wage and Hour Law


• The Washington Minimum Wage Act (WMWA) was passed in 1959 and the state counterpart to the FLSA

• WMWA is found at RCW 49.46 and also sets the state’s minimum wage requirements and other rules pertaining to overtime, penalties for violating WMWA, etc.

• RCW 49.46 is enforced by the state Department of Labor and Industries

• Washington Administrative Code also contains many wage and hour regulations.

• Current Washington State minimum wage is $9.19 per hour

Where federal and state law differs, the institution must comply with the law most favorable to the employee!



University (Public Sector) Terminology


• “Exceptions” employees are those exempt from overtime pay. Exceptions = FLSA overtime exempt

• “Exempt” employees are those exempt from civil service. Do not confuse FLSA/WMWA exempt with civil service exempt!

• “Scheduled” employees are those who receive overtime after a scheduled shift or after 40 hours per week.

• “Non-scheduled” employees receive overtime after 40 hours per week.

• Overtime must be paid at a rate of 1.5 times the employee’s hourly rate

• Overtime must be paid for all hours “suffered or permitted” to work

• Overtime may be “paid” in “compensatory time” in public sector. Comp time = 1.5 hours per hour of overtime worked

• An employee relationship must exist to pay overtime




Executive, Administrative, Professional and Computer Professional (“EAPC”) Exemptions from Overtime

• Public employees directly employed by institution of higher education must be paid on a salary basis.

• Employee must regularly receive for each pay period of one week or longer a predetermined monetary amount consisting of all or part of his or her compensation

• The salary cannot be subject to deductions because of variations in the quantity or quality of work performed

• Salary cannot fall below the amount required in WAC 296-128-510, WAC 296-128-520, WAC 296-128-530, and WAC 296-128-535

• Deductions from pay tend to destroy the salary basis test (WAC 296-128-533)

• Public employers may deduct from leave banks in increments less than one hour

• Deductions for major safety violations permissible


“EAPC” Exemptions from Overtime: Primary Duties


• Quality of work must also meet “primary duties” tests; 80/20 rule generally applies

• All must use independent judgment and discretion

• Combination exemptions exist

• Executive must regularly supervise 2 or more employees and primary duty is management of the institution, a department or a subdivision. Power to hire, fire or make recommendations that carry substantial weight

• Administrative employee must perform non-manual or office work directly related to management policies or University operations.

• Professional exemption applies to those with advanced learning acquired by prolonged or specialized intellectual instruction, or teaching, tutoring, instructing or lecturing for school system or educational institution

• Computer Professional must be highly skilled but no degree required.



Practice Pitfalls

Beware of FLSA/WMWA complaints!

Under the FLSA and RCW 49.46.100, any employer who discharges or discriminates against an employee for complaining about payment of wages or any violation of the federal or state Acts

• is guilty of a gross misdemeanor,

• may be subject to treble damages for unpaid wages, and

• may be liable for retaliation damages.


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