RESET THE CLOCK: REPLACE LIABILITY WITH CREDIBILITY MICHAEL J. MIRARCHI. TAB / SHRM Employment Relations Symposium An Excerpt from:

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1 TAB / SHRM Employment Relations Symposium An Excerpt from: RESET THE CLOCK: REPLACE LIABILITY WITH CREDIBILITY Practical Employee Relations for HR Professionals MICHAEL J. MIRARCHI MIRARCHI MANAGEMENT GROUP 5201 DEMOCRACY DRIVE PLANO, TEXAS July 9, 2015

2 BIOGRAPHY Michael J. Mirarchi President Michael J. Mirarchi is recognized as a leading expert in employment related lawsuit prevention. As an Employee Relations Counselor, he is dedicated to helping employers stay litigation free. Drawing from over 30 years of experience in employment and labor law, as an employer defense attorney and as a Human Resources Vice President, he developed a unique litigation avoidance program. Through it, participants acquire significantly increased practical knowledge and a higher level of confidence in addressing employee relations issues than they have ever had before. He has presented his Reset the Clock program over 1,000 times to more than 25,000 leaders at employer facilities across North America. Mr. Mirarchi believes that the vast majority of leaders want to exercise their abilities with fairness, integrity and professionalism. Nevertheless, if you lead people long enough, there are plenty of opportunities to run into potential liability situations. In these situations, leaders who know what to do and how to do it have a tremendous advantage over those who don t, in avoiding lawsuits. He has presented the HR Professional version of this program for SHRM Chapters across the country, annually for Dallas HR. In 2013, Mike was recognized as the first inductee into the HRSouthwest Conference Speaker Hall of Fame. Over the last 25 years, he has consistently been one of the highest rated speakers, excelling in content, professionalism and delivery. In conjunction with various employer, industry and professional associations, he has conducted live TV broadcasts, webinars and on line employee relations programs, in addition to presenting at their regional and national conferences. Mr. Mirarchi has a B.S. in Business Administration and a Law Degree from Seton Hall University.

3 RESET THE CLOCK A formal process which prevents a plaintiff attorney from taking something leaders did wrong or did not do and using it to attack future employee relations decisions that they make. C In effect, both employer and individual liability clocks are reset. Implementing Changes in Terms of Employment When a modification to employment terms occurs, employees must accept the new terms or quit. While no law requires that business decision be popular, changes are only enforceable if: C Adequate notice before implementation is provided. C The changes are reasonable. C The changes are conspicuously presented. Procedure for implementing changes to attendance, performance or conduct standards: Discuss the intended change with Human Resources. Meet with your employees. C Explain what the change is, why their commitment to it is important and when it is going into effect. A "reasonable opportunity to achieve" is required before holding employees to meeting new performance standards. C Ask for and answer their questions. C Confirm that they know what they must do to comply with the new standard. C Ask for their commitment to comply with the new standard. If anyone voices an objection, tell the group: "I'm available to discuss in private any personal concerns about the new standard." If approached in private, explore assistance to the employee in meeting the new standard and remind him that everyone must comply with it. C Say that failure to comply will result in an appropriate response. Notify Human Resources that this meeting has been held. Document the date and content of the meeting, who conducted it and who attended it Michael J. Mirarchi All rights reserved. 1

4 Delegation of Authority A leader may take input from an employee on another and use it to make decisions. However, responsibility for the effects of those decisions rests with the employer and the leader. C Verify the input before taking action. Delegation of authority to handle an employee relations issue does not transfer responsibility for the results. Fundamental Duties Owed to Employer Employers have a legally recognized right to insist that their employees fulfill certain fundamental duties: C Show up for work. C Perform the job. C Work well with others. Key Concepts of Effective Employee Relations Maximize your use of these concepts and you will minimize your experience with legal challenges: C Be reasonable. It is more important than being logical. C Keep your focus on attendance, performance and conduct. C Fix problems: Recognize - Respond - Resolve. Harmonious Working Environment Refrain from making offensive and derogatory remarks and jokes about race, sex age, etc., anywhere work is done. Disassociate yourself and our organization from such comments or jokes that are made in your presence. Subordinates or Peers: Immediately, publicly and loudly state: C "That remark doesn't reflect my attitude, and violates our policy." Senior Leaders: Report the matter directly to HR. Non-Employees: Address inappropriate statements by contractors, clients, customers, vendors and visitors. VIP's: After a VIP visitor s remark, inform all witnesses that it violated your policy and they don t have to interact with the person. Reset The Clock: Through an employee meeting, handout and enforcement, maximize the effectiveness of your EEO policy Michael J. Mirarchi All rights reserved. 2

5 Personality and Attitude Problems Employees are lawfully subject to corrective action for conduct stemming from their personality and/or attitude, including how well they get along with others. Identify personality and attitude problems to an employee by observations of misconduct. Don t say: "You've got a bad attitude." When taking corrective action or terminating, state: C "You shouldn't have done (or said) that." From now on you must avoid: Rolling your eyes, making loud sighs, throwing your hands up in the air, spinning around in place, using a sarcastic or condescending tone of voice. An employee's failure to get along with a leader can justify termination, despite a generally good work record. Generalized Disparaging Comments If an employee with no history of specific complaints openly makes generalized statements of unfairness or discrimination, ask: C "Do you have a specific concern or complaint regarding unfair treatment or discrimination?" If the employee says no, coaching and counseling is appropriate. State: C "Non-specific disparaging comments are disruptive and must be avoided." C "If you ever have a specific complaint, use our complaint procedure. We will investigate and resolve it." If the employee asks: "Is this going in my personnel file?" state: C "I'll keep a record of our conversation. But I do not see a need to put it in your file. Hopefully, you will not make any such comments and therefore no need for corrective action." To confirm that the employee has stopped the comments, ask the coworker: Have there been any further comments since those you told me about? If not stopped, take corrective action. Mental Condition There are no mental conditions that excuse misconduct. If an employee claims a disability makes him misbehave, state: C Let's consult with HR. Perhaps we'll find a solution that will resolve this problem Michael J. Mirarchi All rights reserved. 3

6 Responding to Threats of Violence Troubled individuals, through direct, veiled or conditional threats, may say precisely what they intend to do and the means by which they will do it before acting violently. C You must respond immediately to a threat because you never know how quickly a person making a threat will actually execute it. How to initially respond: Immediately alert Security to your concerns or those of others reported to you. C Do not attempt to assess a threat, diagnose fitness for duty, or resolve an employee's personal problems on your own. C Use empathy, not sympathy in attempting to calm down an upset person. Make eye contact and listen attentively. Speak calmly and use relaxed body language. Ask: I'm interested in learning from you your side of the story. What do you think the real problem is? What would you like to see happen? What can I do to help? While there is a difference between making a threat and posing a threat, both require appropriate intervention. In most cases, it is possible to separate talk from a real possibility of violence. On-the-Spot Counseling Alert an employee immediately upon observing an instance of poor performance and give him an opportunity to resolve it. State: C I've got a problem and I need your help. C I ve noticed a gap between your performance and what I expected, specifically. C What can you tell me about it? If the problem is due to a deficiency in knowledge, training may solve it. If it s due to deficiency in execution, explore why and ask for a commitment to correct it. Maintain records of all on-the-spot performance counseling. C Ongoing Process: Notice - Notify - Note C Annual Recap:...as we discussed on the following dates: Michael J. Mirarchi All rights reserved. 4

7 Corrective Action Meetings Describe the specific problem to the employee in terms of the expected behavior and his actual behavior. If asked Are you going to fire me? state: C I'm confident that you can turn this situation around. Isn't my confidence in you justified? If given a negative response, a decision reached in consensus with HR to terminate the employee would be appropriate. Non-Specific Complaints When you are counseling an employee about an attendance - performance - conduct problem and the employee complains, When are you going to stop harassing me about this? state: C You have to meet the standards that I have made clear to you. C When I notice a problem, I will bring it to your attention. C This provides you with an opportunity to correct it. C This process will continue until the problem is resolved. Discharge Meetings If an employee states that the termination is discriminatory or unfair, state: "I understand that is your position, but we do not agree with you." Be compassionate (e.g., "I understand this is difficult news to get.") but do not apologize (e.g., "I'm sorry..."). If you are asked about the status of anyone else, state: It would be inappropriate for us to discuss the situation of any other employee. If an employee asks about unemployment compensation, state If you apply, I expect you to tell the truth. Count on me to do the same. The agency makes its own decisions. If asked in an exit interview, "Am I eligible for rehire?" state: "Everyone has a right to file an application. Your prior service will be a factor in whether you will get an offer." 2015 Michael J. Mirarchi All rights reserved. 5

8 RESET THE CLOCK: Replace Liability with Credibility Practical Employee Relations for HR Professionals S O L U T I O N S F I N D E R Changes in terms of employment, procedure for implementing...1:1.2 Concerns about job security, responding to...1:2.3 Corrective action documentation, how to prepare...4:2.7 Corrective action meetings, how to conduct...4:2.6 Deal breakers, unwanted information and sensitive questions, responding to...3:2.12 Disabilities, addressing performance problems...5:1.6 Disabilities, responding to a request for an accommodation...5:1.3 Discharge meetings, how to conduct...4:3.4 Disclosure of a potentially contagious infection, responding to...5:3.1 Discriminatory comments, disassociating yourself from...2:1.2 Disparaging comments, how to address...4:2.3 Employee complaints, proper response to...1:3.1 Erratic performance, how to address...4:1.3 Insubordination, how to address...1:2.8 Mental condition misconduct, how to address...4:2.5 Non-specific complaints, responding to...1:3.3 On-the-spot performance counseling...4:1.2 Open discrimination charges, responding to request to discuss...1:3.2 Personal hygiene problems, how to address...4:2.10 Personality and attitude problems, how to address...4:2.2 Position-specific interview questions...3:2.1 Potential sexual harassment situations, proper response to...2:2.3 Previously unaddressed behavior, how to address...4:2.4 Questions from non-selected candidates, responding to...3:3.3 Reference checks, responding to...4:3.7 Resignations, how to accept...4:3.3 Serious misconduct, initial response to...1:2.6 Sexual harassment complaints, proper initial response to...2:2.8 Substance abuse, confrontation in obvious impairment situations...5:2.5 Substance abuse, constructive confrontation of...5:2.4 Violence, responding to threats...2:3.3

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