FROM INTERVIEW TO DISCHARGE: STRATEGIES FOR MINIMIZING RISK

FROM INTERVIEW TO DISCHARGE: STRATEGIES FOR MINIMIZING RISK BrownWinick Employment Practice Group

The Interview Your opportunity to discuss the job duties, discuss the company and learn relevant information about the applicant. For the employees conducting/participating in interviews, a planned approach is best - helps the focus be on the job, as well as the applicant’s interest in and ability to perform the job functions, with or without RA.

Best Practices: May I ask… • Are you from the U.S.? • Are you married? • Do you have children? • How old are you? • Which relatives of yours should we notify in case of emergency?

Best Practices: May I ask… • Have you had any work comp injuries? • Do you have a driver’s license? • Have you ever complained about sexual harassment?

Screening Applicants EEOC: Any qualification standard (such as a diploma requirement) must be job related and consistent with business necessity. -High School Diploma Requirement -Felony and Arrest Records

Screening Applicants EEOC: Unless job related and consistent with business necessity, screening applicants on the basis of arrest and conviction records may violate Title VII.

Offers of Employment Written vs. Verbal Preserving the at-will exemption Contingencies

Handbooks and Policies Do you have them? Do you follow them? Are they current and consistent with the law? Have you provided copies to all new employees?

Supervisory Hire If you drug test, have you provided your supervisor with the statutory training?

Discipline Performance vs. Conduct

Performance and Conduct Performance: The comparison of an employee’s actions against the objective or subjective standards of the employee’s position Conduct: The comparison of an employee’s behavior against the employer’s written or unwritten behavioral standards or work rules

Progressive Discipline Employer should take action specifically designed to improve employee’s performance or conduct The penalty imposed should fit the violation

Documenting Disciplinary Issues Maintaining fair & accurate documentation can serve as positive evidence in a lawsuit for: Retaliation Wrongful termination Discrimination

Documentation Best Practices • Show that Employer acted in good faith • Show that the Employee was treated fairly • Note the policy or rule violated • Note the conduct constituting the violation

Documentation Best Practices (cont.) • Note the conversations with the employee regarding the policy • Establish that Employee was aware of rule and associated penalties • Examine how similar situations were handled and draw distinctions if necessary

Documentation Best Practices (cont.) Show that employer’s actions pass the “smell test” – if you think it might seem unfair, a jury could, too

Layoffs/Downsizing Occasionally businesses are required to reduce their workforce for reasons unrelated to employee performance or conduct

Best Practices for Implementing a Reduction in Force • Identify the circumstances causing the business to re-design its workforce • Determine which positions are essential to the newly designed organization • Identify the skill sets necessary for the positions that will remain

Best Practices for Implementing a Reduction in Force (cont.) • Examine the skills of existing employees • Compare the skills of existing employees to remaining positions • Identify employees for reduction • Consider discrimination issues

Best Practices for Implementing a Reduction in Force (cont.) Is a Separation Agreement or Severance Package Appropriate? Consider timing issues

Do WARN and/or Iowa WARN apply? The Federal Worker Adjustment and Retraining Notification Act requires that covered employers (100+ employees) give covered employees 60 days notice prior to a plant closure or mass layoff The Iowa WARN law requires that covered employers (25+ employees) give covered employees 30 days notice prior to a plant closure or mass layoff

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FROM INTERVIEW TO DISCHARGE: STRATEGIES FOR MINIMIZING RISK