BEST PRACTICES IN EMPLOYMENT LAW

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1 BEST PRACTICES IN EMPLOYMENT LAW I. State and Federal Employment Laws Every Company Must Know To recognize and utilize the best practices in employment law, you first must know and understand the applicable state and federal employment laws. Provided below is a summary of the state and federal laws every employer must be familiar with. TITLE VII OF THE CIVIL RIGHTS ACT Title VII is a provision of the Civil Rights Act of 1964 which prohibits discrimination in the hiring, discharging, terms, conditions, compensation or privileges of employment, on the basis of race, color, religion, sex/gender, pregnancy, or national origin. The Pregnancy Discrimination Act of 1978 amended Title VII to provide that pregnant women are treated the same as other employees who are disabled. Title VII applies to employers with 15 or more employees. The above classes of individuals are considered "protected classes" under Title VII because of the history of unequal treatment which has been identified in each class. Title VII must be considered when reviewing applications or resumes (i.e., by not eliminating candidates on the basis of a "foreign" last name), when interviewing candidates (i.e., by asking only job-related questions), when testing job applicants (i.e., by treating all candidates the same and ensuring that tests are not unfairly weighted against any group of people), and when considering employees for promotions, transfers, or any other employment-related benefit or condition. It is a discriminatory practice when an act or conduct results in the unequal treatment or separation or segregation of any person under a protected class, or denies, prevents, limits or adversely affects the benefit of enjoyment by that person. For intentional discrimination, employees may seek a jury trial, with compensatory and punitive damages up to the maximum limitations established by the Civil Rights Act of 1991 according the employer's number of employees: employees, a maximum of $50,000; for employees, a maximum of $100,000; for employees, a maximum of $200,000; and for over 500 employees, a maximum of $300,000. Remedies of back pay, reinstatement, and retroactive seniority are available for all types of discrimination, whether intentional or disparate impact. NORTH DAKOTA & MINNESOTA HUMAN RIGHTS ACT The North Dakota Human Rights Act anti-discrimination language is similar to Title VII of the Civil Rights Act. However, North Dakota and Minnesota Human Rights Act applies to employers have one or more employees. Title VII applies to all private employers having 15 or more employees. North Dakota s Human Rights Act provides in part: It is the policy of this state to prohibit discrimination on the basis of race, color, religion, sex, national origin, age, the presence of any mental or physical disability, status with regard to marriage or public assistance, or participation in lawful activity off the employer s premises during nonworking hours which is not in direct conflict with the essential business-related interests of the employer; to prevent and eliminate discrimination in employment relations, public accommodations, housing, state and local government services, and credit transactions; and to deter those who aid, abet, or induce discrimination or coerce others to discriminate.

2 N.D. Cent. Code Minnesota state law is similar to the North Dakota Human Rights Act. Minnesota state law states that it is an unfair employment practice: (2) For an employer, because of race, color, creed, religion, national origin, sex, marital status, status with regard to public assistance, membership or activity in a local commission, disability, sexual orientation, or age, 1. To refuse to hire or to maintain a system of employment which unreasonably excludes a person seeking employment; or 2. To discharge an employee; or 3. To discriminate against a person with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment. M.S.A (2) (Supp. 2003). The main distinction between the Minnesota discrimination laws and the federal and North Dakota laws is that Minnesota recognizes sexual orientation as a protected class, whereas North Dakota and federal laws do not. The above state statutes prohibit employers from making employment decisions based on a protected class. It is a discriminatory practice when an act or conduct results in the unequal treatment (also referred to as disparate treatment) or separation or segregation of any person under a protected class, or denies, prevents, limits, or adversely affects the benefit of enjoyment by that person. Protected Classes Definitions. Provided below are definitions for each of the protected classes : Age : A person s age cannot be used as a basis for an employment decision if a person is over the age of majority. M.S.A subd. 3. Insofar as it relates to any prohibited unfair employment or other practice, age discrimination means at least 40 years of age. N.D.C.C (1). The Age Discrimination in Employment Act of 1967 (ADEA) (29 U.S.C. 621 et seq.) prohibits discrimination in employment on the basis of age with respect to individuals who are 40 years of age or older. The ADEA applies to employers with 20 or more employees. Disability : Any condition or characteristic that renders a person a disabled person. A disabled person is any person who (1) has a physical, sensory, or mental impairment which materially limits one or more major life activities; (2) has a record of such impairment (i.e., a person who has recovered from cancer or mental illness); or (3) is regarded as having such an impairment, even though they may not have such an impairment (for example, a qualified individual with a severe facial disfigurement would be protected under the ADA if denied employment because an employer feared the negative reactions of customers or co-workers). M.S.A subd. 13. Family Status : The condition of one or more minors being domiciled with (a) their parent or parents or the minor s legal guardian or (b) the designee of the parent(s) or guardian with the written permission of the parent(s) or guardian. The protections afforded against discrimination on the basis of family status apply to any person who is pregnant or who is in the process of securing legal custody of an individual who has not attained the age of majority. M.S.A subd. 19. Marital Status : Marital status means whether a person is single, married, remarried, divorced, separated, or a

3 surviving spouse and, in employment cases, includes protection against discrimination on the basis of the identity, situation, actions, or beliefs of a spouse or a former employee. M.S.A subd. 24. National Origin : The place of birth of an individual or of any of the individual s lineal ancestors. M.S.A subd. 25; N.D.C.C (10). Reasonable Accommodation : Accommodations by an employer that do not: 1. Unduly disrupt or interfere with the employer s normal operation; 2. Threaten the health or safety of the individual with a disability or other; 3. Contradict a business necessity of the employer; or 4. Impose undue hardship on the employer, based on the size of the employer s business, the type of business, the financial resources of the employer, and the estimated cost and extent of the accommodation. N.D.C.C (15). Religion : Includes all aspects of religious observation and practice, as well as belief, unless an employer demonstrates that it is unable to reasonably accommodate a prospective employee s religious observation or practice without undue hardship on the conduct of the employer s business. 42 U.S.C. 2000e(j). Sex : Includes, but is not limited to, the basis of pregnancy, child birth, or related medical conditions; and women affected by pregnancy, child birth, or related medical conditions shall be treated the same for all employment related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work. 42 U.S.C. 2000e(k). Discrimination based on sex, includes sexual harassment. N.D.C.C (5). Sexual Harassment : Includes unwelcome sexual advances, requests for sexual favors, sexually motivated physical conduct or other verbal or physical conduct or communication of a sexual nature when: 1. Submission to that conduct or communication is made a term or condition, either explicitly or implicitly, of obtaining employment, public accommodations or public services, or education; 2. Submission to or rejection of that conduct or communication by an individual is used as a factor in decisions affecting that individual s employment, public accommodations or public services, education or housing; or 3. That conduct or communication has the purpose or effect of substantially interfering with an individual s employment, public accommodations, public services or educational environment; and in the case of employment, the employer is responsible for its acts and those of its supervisory employees if it knows or should have known of the existence of the harassment and fails to take timely and appropriate action. N.D.C.C (5). Sexual Orientation : Having or being perceived as having an emotional, physical, or sexual attachment to another person without regard to the sex of that person or having or being perceived as having an

4 orientation for such attachment, or having or being perceived as having a self image or identity not traditionally associated with one s biological maleness or femaleness. Sexual orientation does not include a physical or sexual attachment to children by an adult. M.S.A subd. 41(a). Status With Regard to Public Assistance : The condition of being a recipient of federal, state or local assistance, including medical assistance, or being a tenant receiving federal, state or local subsidies, including rental assistance or rent supplements. M.S.A subd. 42; N.D.C.C (17). AMERICANS WITH DISABILITIES ACT OF 1990 ( ADA ) The Americans with Disabilities Act (ADA) is a federal anti-discrimination law which prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training and other terms, conditions and privileges of employment. The ADA applies to employers who employ 15 or more employees and who engage in an industry affecting commerce. 42 U.S.C.A (5). It protects qualified applicants and employees who have a recognized disability. Disability includes physical or mental impairments that substantially limit one or more major life activities. An individual has a disability under ADA when he/she: Has a physical or mental impairment that substantially limits one or more major life activities; Has a record of such an impairment; or Is regarded as having such an impairment. A qualified individual is someone with a disability that can perform the essential functions of the job, with or without reasonable accommodation. 42 U.S.C.A and Employers with 15 or more employees must reasonably accommodate qualified employees with a disability to allow performance of the job s essential functions. The obligation to provide reasonable accommodation is limited to the known disability. 42 U.S.C.A and A reasonable accommodation is a modification to a job which will allow an individual with a disability to perform the job's essential functions. Examples of a reasonable accommodation include, but are not limited to: Making facilities used by employees readily accessible and usable by persons with disabilities Job restructuring Modifying work schedules Reassignment to a vacant position Acquiring or modifying equipment or devices Adjusting or modifying examinations, training materials or policies Providing qualified sign language interpreters The ADA does not require an employer to create a light duty position for a qualified individual with a disability. A reasonable accommodation also does not include lower production and quality standards. A reasonable accommodation is not required if it would impose undue hardship on the employer. Examples of undue hardship include significant difficult or expense. Employers may not ask disability related questions or conduct medical examinations until after it makes a conditional job offer to the applicant. However, an employer can inquire of an applicant s ability to perform the functions of the job. 42 U.S.C.A Once a job offer is made, an employer can ask about an individual s physical and mental health, including the individual s workers

5 compensation history, prior sick leave usage, illnesses, diseases, and impairments. Such questioning should be job-related and consistent with business necessity. Furthermore, all applicants in the same job category must be subjected to the same examination or inquiry, regardless of disability. 42 U.S.C.A If applicant is not offered a job because of a disability, the employer must demonstrate that the reason for the rejection is job-related and consistent with business necessity. The employer must also notify the individual (orally or in writing) if his or her potential job placement was adversely affected by the results of a post-offer medical examination or disability related question. Medical information must be kept confidential. This means that the medical information must be collected and maintained on separate forms and in separate files. 42 U.S.C.A (d)(4). The ADA is enforced by the Equal Employment Opportunity Commission, and the penalties are the same as for violations of Title VII of the Civil Rights Act. Available damages under the ADA include compensatory damages for future pecuniary losses, emotional pain and suffering, inconvenience, mental anguish and loss of enjoyment of life, punitive damages, reasonable attorney s fees, and other non-pecuniary losses. Compensatory and punitive damages are not allowed in reasonable accommodation cases where good faith is shown. 42 U.S.C.A and THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967 ( ADEA ) The Age Discrimination in Employment Act of 1967 (ADEA) protects workers age 40 and over by prohibiting discrimination against workers 40 and over in any employment or employment-related decision. The ADEA is located at 29 U.S.C and applies to employers with 20 or more employees. The ADEA protects individuals (employees and job applicants) who are 40 years of age or older from employment discrimination based on age. On the rare occasion, a job may specify an age limit, only if age is shown to be a bona fide occupational qualification reasonably necessary to the essence of the business. An inference of age discrimination is appropriate only when the employer favors a substantially younger person, which is defined as ten years or more. Scott v. Parkview Memorial Hosp., 175 F.3d 523 (7th Cir. 1999). Damages collectible under an ADEA claim include back pay, lost benefits, and future wage loss. Liquidated damages (e.g., double back pay) are only allowed when a willful violation is proven. Punitive damages and attorneys fees are not provided for under the ADEA. The ADEA provides for a trial by jury. The statute of limitations is 300 days from date of the discriminatory action. The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to older employees. An employer may reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers. An employee may agree to waive his or her rights or claims under the ADEA, so long as the waiver is: 1. Voluntary; 2. In writing and fully understandable to the releasing employee; 3. Specifically refers to ADEA rights or claims; 4. Does not waive rights or claims that may arise in the future; 5. Must be in exchange for valuable consideration, which is in addition to any benefits or wages employee, was already entitled;

6 6. Must advise the individual in writing to consult an attorney before signing the waiver; and 7. Must provide the individual at least 21 days to consider the agreement and at least 7 days to revoke the agreement after signing it. DISCLAIMER: If an employer requests an ADEA waiver in connection with an exit incentive program or an employee termination program, the following additional requirements must be included in the waiver: 8. Description of class or group of employees that are eligible for the program, including a description of the eligibility factors and applicable time limits; and 9. Job titles and ages of all employees eligible or selected for the programs and ages of all employees in the same job classification who are not eligible or selected. 29 U.S.C.A. 626(f). FAMILY AND MEDICAL LEAVE ACT (FMLA) The Family and Medical Leave Act (FMLA) allows employees who have met minimum service requirements (12 months employed by the company with 1,250 hours of service in the preceding 12 months) to take up to 12 weeks of unpaid leave for: (1) a serious health condition (2) to care for a family member with a serious health condition (3) the birth of a child or (4) the placement of a child for adoption or foster care. 29 U.S.C.A. 203(e) and The FMLA applies to employers who employ 50 or more employees and who engage in an industry affecting commerce. 29 U.S.C.A The FMLA requires employers to: 1. Allow their eligible employees to take up to 12 workweeks of unpaid leave during any 12- month period for the above circumstances; 2. Provide continued health benefits during leave; 3. Restore employees to the same position upon return from leave (or to a position with the same pay, benefits and terms and conditions of employment); and 4. Appropriately notify employees of their rights and responsibilities under the Act. The birth of a child or placement of a child for adoption or foster care is considered family leave, and a medical certification form does not need to be completed. The employer can require a medical certification to support the employee s request for leave for a serious health condition or to care for a family member with a serious health condition. An employer can also request periodic medical statements regarding the employee s status and intent to return to work. 29 C.F.R , , , and Medical certifications and other related documents must be maintained in separate confidential files. 29 C.F.R (g). Notice: If the employee has notice of the leave, (e.g., anticipated pregnancy due date), the employee must give to his or her employer 30 days notice. If the 30 days notice is not possible, notice must be given as soon as practicable. 29 C.F.R Scheduling: Employees can take 12 weeks of leave in (1) one block of time; (2) in smaller blocks as needed (intermittent leave); or (3) on a reduced work schedule (i.e. part-time for 24 weeks). Managers may need to rearrange the duties of other workers or hire a temporary to cover the responsibilities of a worker on FMLA leave. With few exceptions, it is important not to interfere with an employee's right to use FMLA leave and be reinstated upon completion of the leave. Recording FMLA Leave: It is the employer's responsibility to designate leave as FMLA leave, whether the employee mentions FMLA or not. The employee must be promptly notified that leave will be counted as FMLA leave in order to limit the total amount of time the employee can be away from

7 work. The employee has the responsibility to notify the employer of the need for leave, and to provide enough information so the employer can determine if the leave qualifies under FMLA. The employer can require an employee to first take accrued paid vacation, personal leave, and medical or sick leave as part of the employee s family or medical leave. 29 U.S.C.A. 2612(d). The employer must maintain coverage under any group health plan on the same conditions that coverage would have been provided if the employee were not on leave. The employer can recover its share of premium payments if the employee fails to return from leave for reasons other than the continuation, recurrence, or onset of a serious health condition, or other circumstances beyond the employee s control. 29 U.S.C.A. 2614(c). Reinstatement: When an employee is ready to return from leave, as long as it has not exceeded the 12 week FMLA maximum, they must be reinstated to the position held before the leave or to an equivalent position with equivalent benefits, pay and other terms and conditions of employment (such as work schedule, eligibility for promotions, bonuses, etc.). 29 U.S.C.A. 2614(a). Penalties: Damages collectible under the FMLA include actual damages, such as lost wages and benefits; injunctive relief; equitable relief, such as reinstatement or promotion; interest, reasonable attorney s fees and costs. 29 U.S.C.A In the absence of FMLA, many states have family and medical leave and disability laws that apply to smaller companies or to employees who are not eligible for FMLA. It is important when addressing an FMLA issue, you also look to the applicable state laws. Uniformed Services Employment and Reemployment Rights Act The Uniformed Services Employment and Reemployment Rights Act (USERRA), which replaces the Veterans' Reemployment Rights Act, very broadly prohibits employers from discriminating against individuals because of past, present, or future membership in a uniformed service (including periods of voluntary training and service). The Act: 1. Prohibits discrimination in employment, job retention and advancement; 2. Requires employers to provide retraining opportunities; 3. Requires health care and pension benefits to continue during leave; 4. Allows an employee to take military leave up to five years; 5. Provides additional protection for disabled veterans; 6. Requires employees to provide notice of their need for leave; and 7. Requires service members to notify their employers of their intention to return to work. Individuals reemployed after a period of military service are generally required to be allowed to return to work to all the benefits and seniority they would have had if they had remained continuously employed. Penalties for non-compliance include back pay and benefits and liquidated damages if conduct was willful. II. Understanding the Employment At-Will Rule What is employment at-will and how does it affect you? North Dakota and Minnesota, like several other states, are employment at-will states. Employment at-will is where there is no employment contract or other promises or terms of employment. Absent an employment contract or other verbal contractual terms, an employer can terminated an employee at any time, without cause and without notice, for almost any reason -- in other words without cause, and an employee can quit at any time without cause or notice.

8 Employers need to be cautious on the reason for termination. Decisions to fire based on race, color, religion, sex, national origin, age, mental or physical disability, marriage, public assistance, etc. are not appropriate reasons for firing an employee and may subject the employer to liability. The same is true for firing based on such things as the employee s refusal to commit a wrongful act, fulfillment of a public obligation such a jury duty or obeying a subpoena to appear in court, or filing a Workers Compensation claim. It is also a wrongful discharge practice to terminate an employee who refuses to commit an illegal act, or who reports the Employer for violating a law. Exceptions or Restrictions to the At-Will Rule There are several exceptions to employment at-will and an employer who is not aware of these exceptions can inadvertently change the employment at-will status and subject the employer to liability. Employees are presumed to be at-will employees meaning that the employer can fire an employee at any time with or without cause. The employment at-will status can be changed by the employer, whether it be intentionally (i.e. requiring the employee to enter into an employment contract) or inadvertently (i.e. through the employer s policies, manuals, or oral or written promises). If the employment status is changed to a contractual one, then the employee may be fired only for cause. The employment at-will status can be changed by the employer, whether it is intentionally (contract) or inadvertently by the following actions: 1. Representations or promises made during the interview process; 2. Letters of employment; 3. Promises regarding term of employment or future growth with the business; 4. By the employer s policies or manuals; or 5. Other verbal or written promises. The sole fact that the employee is given a handbook or manual does not automatically change the employment to a contractual one. Instead, the handbook or manual must be closely examined to determine if these documents give the employee a reasonable belief that their employment is permanent and may only be terminated for certain given reasons. If so, the employee may have an implied in fact employment contract. This is one where the employer and employee do not intentionally enter into an employment contract. However, a contract is implied through certain representations (for example employment policies) made by the employer. Employment contracts may also be created through the employer s oral or written promises, such as letters of employment or oral representations which may include promises regarding the term of the employment or future growth with the business. Furthermore, contractual employment may be implied if the employee forbears from doing something as a result of his or her employment with the employer, such as turning down another job offer due to the employer s representations. Additional exceptions to the at-will doctrine include public policy and statutory exceptions. Examples of public policy exceptions are: the employee s refusal to commit a wrongful act; fulfilling a public obligation such as jury duty or obeying a subpoena to appear in court; or filing a workers compensation claim. Statutory exceptions include the state and federal anti-discrimination laws and whistle-blower laws. North Dakota s whistle-blower statute, N.D.C.C , provides in part: "1. An employer may not discharge, discipline, threaten discrimination, or penalize an employee regarding the employee's compensation, conditions, location, or privileges of employment because: 1. The employee, or a person acting on behalf of an employee, in good faith, reports a violation or suspected violation of federal, state, or local law, ordinance, regulation, or rule to an employer, a governmental body, or a law enforcement official. 2. The employee is requested by a public body or official to participate in an investigation, a

9 hearing, or an inquiry. 3. The employee refuses an employer's order to perform an action that the employee believes violates local, state, or federal law, ordinance, rule, or regulation. The employee must have an objective basis in fact for that belief and shall inform the employer that the order is being refused for that reason. Minnesota s whistle-blower statute, M.S.A , provides in part: Subdivision 1. Prohibited action. An employer shall not discharge, discipline, threaten, otherwise discriminate against, or penalize an employee regarding the employee's compensation, terms, conditions, location, or privileges of employment because: 1. the employee, or a person acting on behalf of an employee, in good faith, reports a violation or suspected violation of any federal or state law or rule adopted pursuant to law to an employer or to any governmental body or law enforcement official; 2. the employee is requested by a public body or office to participate in an investigation, hearing, inquiry; 3. the employee refuses an employer's order to perform an action that the employee has an objective basis in fact to believe violates any state or federal law or rule or regulation adopted pursuant to law, and the employee informs the employer that the order is being refused for that reason; or 4. the employee, in good faith, reports a situation in which the quality of health care services provided by a health care facility, organization, or health care provider violates a standard established by federal or state law or a professionally recognized national clinical or ethical standard and potentially places the public at risk of harm. Employers and employees must keep in mind that each employer-employee relationship is unique and must be examined on a case by case basis. Just because the employee is given benefits or an employee handbook does not automatically mean that the employee can be fired only for cause. It is recommended that the employer know and understand the reason for termination before terminating employment. Absent an employment contract, the employee has the burden of proving a reasonable belief of permanency and job security. The employee also has the initial burden of proving that he/she was terminated for discriminatory reasons, or for reasons that violate state or federal laws. III. Best Practices to Reduce the Risk of a Wrongful Termination Lawsuit We are all familiar with the saying the best defense is a good offense. The most important thing an employer can do to protect itself from employee lawsuits, is to accurately and consistently document all employee matters. This preserves the record for possible future lawsuits and makes it easier for the employer to defend itself against an employee s claim that the employee was wrongfully terminated. Another important point for employers is to always try to preserve the employment at-will status, but to also always try to terminate for cause. Terminating an employee for cause reduces the possibility of a wrongful discharge claim brought by employees. On a practical note, inform the employee of the reason for termination. The reason for termination should not be a secret. By being up front with the employee, the employer may avoid a wrongful discharge claim. An employer must be careful to preserve the at-will employment status. The documents an employer provides to its employees may allow the Courts to imply an employment contract. Accordingly, if the employer has an employee handbook, policy manual, etc., these documents should carry a disclaimer informing the employee that the employment is at-will. This disclaimer should be present several times throughout the document, but at a minimum, should be at the beginning and the end of the document,

10 and should be highlighted, underlined, and/or in bold print. It is also recommended that the employer require the employee to sign a disclaimer that the employee understands his or her employment is atwill. Although a well-drafted policy manual or handbook may create the groundwork for effective defenses against employee claims, an employee handbook or policy manual may create an implied employment contract if employers are not careful when drafting such documents. An employer should refrain from using the following terms in any handbook or policy manual: permanent, long-term, tenure, career, vested, future, security, and probationary. These terms may create a reasonable belief of employee permanency or of future job security. Employers should also be careful when including extensive discipline policies in their handbooks or manuals. These policies may be read as implying a contractual employment. Additionally, if such polices are instituted, they must be strictly followed by the employer. Employers must be cautious in all representations made to its employees, whether verbal or written. To preserve the at will employment status, employers should always include a sentence in all documents to employees that their at will employment status is not changed by any representations made by the employer. This is especially important in benefit plans or agreements. Employers should examine the reason for termination before terminating the employee. The examination should include the following steps: 1. Does this employee have an employment contract or agreement? 2. Were any promises made to this employee regarding the term or termination of employment? 3. Has the employer followed policies (look at the Employee Handbook or any other policies addressing termination of employment). 4. Is the employee in a protected class? If so, does this have any impact on the reason for termination. If yes, stop the termination process and consult legal counsel to review the discrimination issues. 5. Does the termination violate any state or federal laws? (For example is the Employer terminating the employee because the employee was injured on the job, or is serving jury duty, etc.) Employers will reduce the risk of a wrongful discharge lawsuit by going through these steps prior to terminating an employee. The Right Way to Discharge an Employee The best defense is a good offense. Wrongful termination lawsuit is on the rise. Improper employment practices not only subject the employer to liability, but also may subject the individual supervisor or manager to liability. The most important thing an employer can do to protect themselves from employee lawsuits, is to accurately and consistently document all employee matters. Do not ignore an employee problem hoping it will go away it will more than likely escalate. Another important point for employers is to preserve the employment at-will status, but to always try to terminate for cause. Terminating an employee for cause reduces the possibility of a wrongful discharge claim. Documenting Performance Issues Start with a written job description which should include job expectations. Refer to the written job description when reprimanding an employee, if the reprimand is performance related. If the reprimand is related to a company policy violation, refer to the specific policy and provide a copy of that policy or

11 policies to the employee when reprimanding. How To Appropriately Discipline/Reprimand 1. Act in a manner that will be perceived as fair: 1. Clearly communicate your expectations; 2. Enforce your expectations EVENHANDEDLY treat similarly situated people the same. Show no favoritism; 3. Promptly address with employee when performance or behavior is unacceptable. Do not sugar coat be upfront and forthright. Employees will respect you more; 4. Offer to assist the employee in correcting the problem and follow through with this offer; and 5. Give the employee a meaningful opportunity to improve. 2. Be discreet loose lips sink companies and careers 3. When possible get a second opinion 4. Document, document, document. Documentation should be in a memo format with a place for the employee to sign acknowledging that the discussion took place and they received a copy of the memo. Language should be included where the employee signs stating that the signature is simply an acknowledgment that the conversation took place and not an admission of said conduct. A Performance Deficiency Report Should Generally Contain 1. Identify performance issue. Describe with clear nonconclusory language. Factual no assumptions or impressions. Attach copies of complaints or rule violations. 2. Description of the desired performance: attach copy of written job description or applicable policy to the memo. Invite employee to talk if he/she has any questions regarding what is expected. 3. Reference previous discussions with the employee and attach copies of all applicable previous memos with attachments. 4. State the date by which the employee must correct the unacceptable performance or conduct. This step is important to show the employee was given a reasonable opportunity to address deficiencies. 5. Identify the consequences the employee will face if he/she fails to meet the stated expectation. (For example, Failure to correct this problem by the date given in this memo will result in additional disciplinary action, up to and including termination. ) 6. Provide area for employee s comments or explanations. 7. Obtain employee s signature to verify that the discussion took place not an admission of guilt. If the deficiency results from customer dissatisfaction, it is imperative that the memo capture as much of the customer s own words and reasons for dissatisfaction as possible. If there is a written complaint, attach to performance deficiency report. Employers can delete or redact any names in the report if there is a concern of protecting a customer s identity or fear of retaliation. Make sure you follow the Company employee handbook or policies. Employee discipline should also be consistent with the Employer s past practices.

12 Summary of Proper Documentation 1. Accurate and fair objective 2. Consistent/enforced uniformly 3. Based on facts and written factually not conclusory 4. Detailed 5. Timely 6. Communicated to employee Firing of Employees MAKE SURE YOU FOLLOW YOUR HANDBOOK When you reach this stage with employee IT SHOULD NOT BE A SURPRISE - if so you have not properly documented and communicated with employee. Before reaching this stage, look at the file and see if it has been properly documented and communicated to employee. Reexamine your reason for terminating the employee. The reason cannot be based on any protected class. Protected classes include: race, color, religion, sex, national origin, age, mental or physical disability, marriage or public assistance. Employers also cannot terminate an employee for refusing to commit a wrongful act; fulfilling a public obligation such as jury duty or obeying a subpoena to appear in court; or filing a workers compensation claim. Termination Meeting: It is important to leave the employee with a feeling that she/he was treated in a fair manner. An employee who feels that the employer conducted the termination in a fair manner is less likely to sue an employer for unlawful employment practices. The termination meeting should include the following: 1. When possible, two members from management should be present - one being the employee s direct supervisor. The purpose for the second member is strictly to observe. 2. The meeting should take place at work in a room that is as discrete as possible in order to limit the embarrassment the employee will feel from co-workers. The employee should feel free to leave the room at any time during the termination meeting and not be threatened to stay. The Employer should not create an environment where the employee feels trapped in a room. This may give rise to a false imprisonment claim. 3. The meeting should take place first thing in the morning or late in the afternoon in order to minimize the employee s contact with co-workers and minimize any embarrassment. However, there are certain exceptions when an employer should fire on the spot. For example, if an employee is dangerous or has violated company policy that justifies an immediate termination. 4. Give the employee the reason for termination. Provide copies of documents that support termination, such as prior memos documenting performance issues. North Dakota does not require employers to provide a written reason for termination. Under Minnesota law, if an employee asks for the reason(s) for termination in writing, the employer must respond in writing within 5 days of the request. 5. Wrap up the meeting by giving COBRA information and all other appropriate documents ending the employment relationship. Discuss what type of employment reference will be given for the employee. References typically provide dates of employment, rate of pay, and job title unless employee gives a signed authorization for you to release more information. Final Paycheck: Discuss this at the termination meeting. North Dakota requires an employer to mail the employee his/her final paycheck by certified mail within 15 days or the next regular pay period, whichever occurs first. Minnesota requires the final paycheck to be paid within 24 hours of demand or

13 the next regular pay period, whichever occurs first. In Minnesota, employees who voluntarily quit are to receive their last paycheck by the next payday or within 20 days, whichever occurs first.

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