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1. www.FandPnet.com Baltimore Easton Hagerstown Herndon Tampa Wilmington Breaking Up is Hard to Do:Disciplining Your Problem Employees Albert B. Randall, Jr., Esq. Quality Representation, Personal Service

2. Handbooks • Drafting – HR Manager or Atty.? • Cost-benefit analysis • HR Manager should draft policy • Atty. should review for legal compliance • Pre-written policies (one size does NOT fit all) • Plain language approach – NO LEGALESE!! Quality Representation, Personal Service

3. At-will Employment • Maryland standard • May terminate employee for any reason • Non-contract employees • Termination may not violate public policy (Adler) • Employers should have at-will disclaimer • Handbook or • Stand alone policy Quality Representation, Personal Service

4. At-Will Disclaimers • Handbook may be found to be employment contract w/o disclaimer (may form implied contract) • Cover page in handbook • Large, bold typeface, conspicuous • Acknowledgement of receipt by employee • Sample language: • “This handbook contains the complete agreement between the company and its employees. Nothing in this handbook should be interpreted as a contract of employment. Either the company or you may terminate the employment relationship at any time and for any reason.” Quality Representation, Personal Service

5. Drafting Policies • Generally, employers are free to draft any personnel policy relevant to its business/workforce • No-no’s • Those prohibited by statute or case law • Those that conflict with a contract (CBA or NLRA) • Those that jeopardize health or safety of workforce • Those that conflict with public policy • Yes-yes’s • EEO policy • FMLA policy Quality Representation, Personal Service

6. Drafting Policies (cont.) • Overly broad • Sweeping statements in an effort to regulate as much as possible • Language is often vague • Often contain unenforceable provisions • Overly narrow • Extreme regulation of employee conduct • Impossible to cover everything • May have negative psychological impact Quality Representation, Personal Service

7. Drafting Policies (cont.) • Better to draft “happy medium” policies • Ensure that policies are legally enforceable • Equally importantly, ensure that the policies are practically and uniformly enforced • Need to allow discretion • Ensure that front-line managers and supervisors are trained on policies and are held accountable for their implementation Quality Representation, Personal Service

8. Policies to Consider • FMLA (required) • EEO (required) • At-will disclaimer • Employee privacy/emails • Leave (sick, vacation, personal, military, jury, bereavement) • Disciplinary • Workplace violence • Substance abuse Quality Representation, Personal Service

9. Policies to Consider • No-solicitation • OSHA/safety policies • Employee codes of conduct/dress • Benefits (COBRA, etc.) • Off-duty/moonlighting • Arbitration of employment disputes • Jury Trial Waivers/Venue Provisions Quality Representation, Personal Service

10. Hiring Practices • No unintended promises • Recruiting • Employment applications • Offer letters • No discriminatory questions • Disability, gender, national origin, religion • Up-to-date Job descriptions Quality Representation, Personal Service

11. Discipline • Three types: • Zero tolerance • Progressive • Hidden/reactionary Quality Representation, Personal Service

12. Progressive Discipline • Publish the policy • Informs employee of expectations • Draft policy so that it does not contractually bind employer • Be wary of “shalls”, “wills”, “musts” • Permit discretion • Remind of “at-will” employment in discipline policy • Be intentionally vague in terms of discipline for various offenses Quality Representation, Personal Service

13. Documentation • Do supervisors maintain incident logs? • Have verbal warnings been documented/retained in personnel files? • Are copies of written warnings retained? Quality Representation, Personal Service

14. Documentation (cont.) • Verbal warning • Employee/supervisor’s name & date of warning • Reason for warning • Opportunity for employee to respond • Corrective measures • Statement that failure to correct will result in more serious discipline, including up to termination Quality Representation, Personal Service

15. Documentation (cont.) • Written warning • Signed acknowledgement/date from employee • Signed/dated by supervisor • Include acknowledgment from employee that the failure to undertake corrective measures will result in more severe discipline • If employee refuses to sign, supervisor should note Quality Representation, Personal Service

16. Performance Appraisals • Do they match the employee’s performance? • If not, may be difficult to discipline/terminate/prevail in litigation Quality Representation, Personal Service

17. Do You Investigate? • Does law require investigation? • Is there a contractual obligation to investigate? • Concerns for future liability? Quality Representation, Personal Service

18. Choosing the Investigator • Match the investigator to the situation • Consider training and qualifications • Consider nature of allegations • Consider second investigator for corroboration Quality Representation, Personal Service

19. Principles Underlying Investigations • Fairness • Notice to accused • Opportunity to respond • Fundamental fairness • Does the result pass the “smell test?” Quality Representation, Personal Service

20. Gathering Information • Consider all records, voicemail, e-mail, telephone records, computer records, photographs and security videotapes • Preserve originals • Interview witnesses • Maintain impartiality • Preserve confidentiality • Focused questioning Quality Representation, Personal Service

21. Making the Decision • Consider suspending pending investigation before immediately terminating • Have you interviewed all witnesses, including accused and those witnesses identified by accused? • Have you followed the policy? • Have you acted fairly/non-discriminatorily? • Have you documented everything? • Do you have a witness at the termination meeting? Quality Representation, Personal Service

22. Documenting the Decision • Equally important as documenting the investigation • Helps establish rationale behind decision Quality Representation, Personal Service

23. Guarding Against Retaliation Claims • Retaliation claims fastest growing EEOC claim • Need to advise Complainants and other participants of no tolerance for retaliation • Follow up to ensure that no retaliation has taken place Quality Representation, Personal Service

24. Questions? Albert (“Bert”) B. Randall, Jr., Esq. Franklin & Prokopik The B&O Building 2 N. Charles Street, Suite 600 Baltimore, MD 21201 (410) 230-3622 ARandall@FandPnet.com www.FandPnet.com Baltimore MD u Easton MD u Hagerstown MD u Herndon VA u Tampa FL u Wilmington DE Quality Representation, Personal Service