Dealing with ProblemEmployees Effectively
Legal Tips and Challenges
Goals for Presentation
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• Review typical challenges in coaching,counseling and discipline conversations
• Provide tips for handling or avoidingtypical challenges
• Create awareness but not fear of legalissues
Beth’s Theory
Fairness + Respect = Few Legal Issues
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Intro to Legal Rights
• Employees in West Virginia are generally“at will, meaning they may be dischargedor resign without cause or notice
• “At will” exceptions:
– Employment Agreements/CollectiveBargaining Agreements
– “Public policy” exception
– Discrimination and other protective laws
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Examples of Protective Laws
West Virginia Human Rights Act - Civil Rights Act of 1964 -Americans with Disabilities Act -Age Discrimination in EmploymentAct – Family and Medical Leave Act – Equal Pay Act – UniformedServices Employment and Reemployment Rights Act –Occupational Safety and Health Act – Genetic Information andNondiscrimination Act – Fair Labor Standards Act – EmployeeRetirement Income Security Act – Executive Order 11246 –Bankruptcy Code – Immigration Reform and Control Act – WestVirginia Whistleblower Law – West Virginia Patient Safety Act –West Virginia Workers’ Compensation Act – Federal and State lawsprotecting jury duty – Federal and State laws prohibitingdiscrimination based on wage garnishment – West Virginia Use OfTobacco Products – West Virginia statutes protecting political views
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Legal FAQs(Frequently Asked Questions)
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Legal FAQs
• Should I document a coaching ordisciplinary conversation?
– Scripts or talking points are helpful if you arenervous or uncomfortable
– A memo confirming the meeting can clarifythe message
– Undocumented conversations are easilydenied or misunderstood
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Legal FAQs
• What if the employee asks for arepresentative or witness?
– Absent a contract that states otherwise,employees do not have any legal right to awitness or representative in a coaching,counseling or disciplinary conversation
– Consistent practice of not permittingrepresentatives or witnesses is recommended
– Special circumstances should be considered
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Legal FAQs
• Should I have a witness with me fordifficult conversations?
– A fellow member of management may help indelivering the message
– Having a witness for some conversations andnot others might give appearance ofdiscrimination
– Use good judgment
– Be conscious of intimidation
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Legal FAQs
• What if the employee wants to tape theconversation?
– Under WV law, one-party surreptitiousrecording is permitted
– You are not required to give consent to taperecording (I recommend you do not)
– Remember that audio recording can bemanipulated
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Legal FAQs
• What if person being coached ordisciplined raises new information orallegations?
– If new information, listen and acknowledgeand look into it after the meeting
– All allegations of unlawful harassment ordiscrimination must be reported/investigated
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Legal Tips for Staying Outof Court
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Legal Tips
• Do NOT retaliate for protected activities
• Some examples of protected activities
– Raising safety concerns
– Questioning legality of payroll practices
– Complaining about unlawful discrimination orunlawful harassment
– Whistleblowing as to illegal conduct
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Legal Tips
• Coaching conversations should be basedon performance and NOT protectedactivity or status like --
– FMLA leave or other protected medical leave(like workers’ compensation)
– Protected categories (age, race, religion,pregnancy, union activities, etc.)
– Protected activities (explained on previousslide)
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Legal Tips
• Treating the same performancechallenges differently is an invitation for adiscrimination claim
• Delaying coaching, counseling ordisciplinary action for problem conduct orperformance sets the stage for anemployment claim
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Legal Tips
• Use email wisely and sparingly (when indoubt, delete before sending)
• Remember that your employee is NOTyour patient in a coaching conversation –be compassionate but not clinical
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Typical Challenges
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Typical Challenges
Challenge and Impact
• Unacceptable conducttolerated for extensiveperiod of time– Intervening events pose
risk of discrimination orretaliation scenarios
– Difficult to explain past lackof action
Leadership Opportunity
• Investigate and changecourse to remedysituation
• Acknowledge pastinaction and emphasizenew commitment
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Typical Challenges
Challenge and Impact
• Written performanceevaluations areinconsistent withcoaching or correctiveaction– Mixed message
– Importance of coachingundermined
– Almost impossible toexplain in litigation
Leadership Opportunity
• Be consistent andaccurate in allcommunications
• Not communicating iscommunicating
• Make sure right folks areevaluating performance
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Typical Challenges
Challenge and Impact
• Individuals who receivereward and recognitionare not solid or highperformers– Mixed message
– Positive messagecontradicts and overridesconstructive feedback
Leadership Opportunity
• Be honest
• Recognize solid and highperformers appropriately
• Performanceencompassescompetence, behaviorand attitude
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Typical Challenges
Challenge and Impact
• Over-reliance on emailcommunications fordifficult conversations– Easily misinterpreted
– Email “strings” can createunintended message
– Can provoke “ranting” orendless debate
Leadership Opportunity
• Communicate directlyand in person
• Confirmation by email isOK, but first deliverdifficult messages inperson
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Typical Challenges
Challenge and Impact
• Performance standardsand expectations are notconsistently upheld indepartment or acrossorganization– Promotes perception of
“favorites” and “doublestandards”
– Harms morale
– No benefit seen toimproving performance
Leadership Opportunity
• Be consistent
• Be aware of perceptionsof inconsistencies andunfairness and addressthem
• Uphold accountability
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Guidelines for DisciplinaryDocumentation
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Documentation Guidelines
• Developing a “template” for disciplinarydocumentation is nearly impossible
– Every situation should be analyzedindividually
– Use extreme caution with “cutting andpasting” from prior documents
• Applicable policies must be identified byname in the document
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Documentation Guidelines
• Description of incident(s) should beconcise, factual, objective and free fromassumptions or exaggeration
• Level of detail should be minimumnecessary to explain the situation
• If investigation has been conducted, retainsupporting documents in investigative file
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Documentation Guidelines
• NO confidential information (like medicalinformation) in disciplinary documentation
• Avoid abbreviations and slang
• Use correct grammar and propersentences
• Does your document make sense to aperson not familiar with your department?
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Questions and Discussion
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