Defending Through Documentation

1. Defending Through Documentation Presented by: Donna King Perry Catherine Salmen Wright Dinsmore & Shohl LLP 101 South Fifth Street, Suite 2500 Louisville, Kentucky 40202 (502) 581-8000 Donna.Perry@dinsmore.com Catherine.Wright@dinsmore.com

2. Goals of Documents • Educate employees • Manage employees • Provide evidence that employee was made aware of policies • Provide evidence that employee made aware of changes to policies • Make employees aware of procedures for complaints

3. Maintaining Files • Properly compiling personnel files from day one can give you an advantage in subsequent lawsuits for breach of contract, discrimination or wrongful discharge claims.

4. Employment Applications • Key elements and statements to include: • Date -- for purposes of determining when a statute of limitations period might run. • Statement that any offer is contingent upon pre-employment screening and favorable references. A form for reference checking may be included on the application, but is better to keep separately with a waiver signed by the applicant which can be easily submitted to former employers.

5. Employment Applications • At-will clause - - the application also serves as further documentation of the employment at-will. Applicant should be on notice that, if hired, the employee can be terminated with or without cause or notice at any time.

6. Sample At-Will Language I understand and acknowledge that neither this application nor acceptance of employment with the company shall be used, construed or deemed to create a contract of employment, expressed or implied or any other promise of any kind. No commitment to employ for any specified duration and no contract for employment, express or implied, shall be valid or binding on the company unless it is expressly set forth in a separate document and signed by the president of the company. The company hires at-will. At the option of either the employee or the company, I understand that employment can be terminated, with or without cause, and with or without notice at any time.

7. Employment Applications 4.No-misrepresentations clause -- requires the applicant to affirm that all of information provided is true and complete to the best of his knowledge; also warns that any misrepresentations or omissions can result in refusal to hire or termination of employment.

8. Application/Interview Pitfalls • Avoid questions which directly or indirectly inquire about: • Age/Date of birth; • Race, religion, sexual orientation or national origin; • Physical traits, disabilities or handicaps; • Drugs or alcohol use; or • Smoking

9. Initial Documentation/Orientation • Areas to cover: • Benefits -- vacation, sick leave, discounts, direct deposit • Personnel policies -- performance appraisals and review procedures, complaint procedures, discipline procedures and absenteeism policies • Insurance coverage and explanation of COBRA rights • Workplace policies -- FMLA, EEO, sexual harassment, and drug and smoking policies

10. Initial Documentation/Orientation • Documentation which employer must provide to employee -- handbooks, manuals and safety information; • A list of all paperwork that the employee must complete -- I-9 forms and acknowledgments of receipt for important documents such as the employee handbook, arbitration agreement, and sexual harassment policy; and • A signed checklist showing all documents and information the employee received.

11. Performance Reviews • Train evaluators • Conduct evaluations periodically • Be consistent with evaluations – in form and application • Be honest in evaluations – document any serious complaints about employee • Follow-up with additional training or corrective action

12. Disciplinary Documents • Maintain records of any disciplinary action – oral reprimand, written reprimand and final reprimand. • Inform employee that any reprimand is being reflected in his/her personnel file. • Reflect prior reprimands and warnings in subsequent reprimands. • Have employee sign acknowledgment that he/she has received copy and understands the problems and recommended solution. • Have supervisor sign.

13. DisciplinaryDocuments • These documents must be • Consistent; • Objective; • Detailed; • Timely

14. Follow Through • Once problem is identified – must take appropriate and consistent action. • Cannot create exceptions to policies and procedures -- inconsistent application invites legal action. • Prompt investigation and response.

15. Pre-termination Risk Assessment • Is this a high risk termination? • Member of a protected class • Whistleblower • Filed complaint or charge with EEOC, OSHA, DOL, WC • Leader in workplace for employee rights or in union • Near vesting in benefits

16. Pre-termination Risk Assessment • Is the evidence conclusive? • Is termination appropriate remedy? • Is termination for conduct explicitly or implicitly addressed? • Has conduct always been prohibited? • If policy change, was employee adequately notified?

17. Pre-termination Risk Assessment • Is the evidence conclusive? • Have policies and procedures been consistently applied? • Similar instances tolerated or ignored? • Progressive discipline plan followed? • Violence or safety precautions needed? • Legal counsel advised of termination?

18. Pre-termination Risk Assessment • Is there an express or implied employment contract? • Does a contract exist? • Does contract address termination? • How does contract define “cause” as it relates to termination? • Is there a monetary penalty for early termination under the contract? • Is there a non-compete clause - - to enforce or not to enforce?

19. Limits on Right to Terminate • Exercise of Statutory Rights • OSHA, garnishment laws, discrimination laws or wage & hour • Right to judicial process – jury duty, subpoena • Refusal to Violate Law • Whistleblower

20. Statutory Exemption: • Race or color 7. Status as a veteran • National origin 8. Military Service • Gender 9. Smoker (Kentucky) • Disability 10. Requested FMLA leave • Religion 11. Union Activity • Age

21. Right to Terminate Limits • Contracts – Express or Implied • Tort Liability • Intentional Infliction of Emotional Distress • Defamation

22. Plan Termination • Get everyone on “team” on same page • Include management • Avoid: • Surprise to supervisor and direct co-workers • Allowing arguments for or against termination • Unnecessary publication of disparaging facts

23. Termination Conference • Conduct an exit interview to diffuse problems and minimize future claims. • If employee fails to mention discrimination or harassment as a reason for leaving, may challenge employee’s credibility later.

24. Termination/Resignation Form • Include: • Type of separation • Reason for leaving • Complaints/concerns • Employee’s obligation not to disclose confidential or proprietary information • Complete during or immediately after interview by someone other than immediate supervisor. • Signed by employee, if possible.

25. Termination Interview • What to Say • State only the truth. • State facts consistent with reason given for termination. • Be firm, but understanding. • What Not to Say • Do not take sides -- everything you say may come out in court if the employee later sues. • Do not sugar coat the termination. If it is for cause, state the cause.

26. Waiver, Release and Nondisclosure Agreements • Obtain whenever possible • Valid consideration • No coercion or confusion • Explicit terms and explained to employee • Right to have counsel review • ADEA requires 21 day review period

27. Include in Waiver, Release and Nondisclosure Agreements • Provisions to consider: • Non-admissions clause • Confidentiality • Non-disparagement • No rehire • Tax consequences • Nondisclosure of confidential or proprietary information

28. Post Termination Responsibilities • Limit information to avoid defamation claim • Handling of reference checks • Direct all requests to HR department; • Safest to disclose only date of hire, date of termination, position & rate of pay; • See authorization from form employee before you give more information; • Be consistent.

29. Conclusion • Be Consistent – Do what you say you will do • Maintain Accurate Records • Document performance issues and disciplinary actions • Plan and follow-through on evaluations and terminations

30. Questions? • Donna King Perry • Donna.Perry@dinsmore.com • (502) 581-8085 • Catherine Salmen Wright • Catherine.Wright@dinsmore.com • (859) 425-1068