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The Ten Deadly Questions

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The Ten Deadly Questions

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The Ten Deadly Questions

  1. 1. www.kpaonline.com (866) 356-1735 The Ten Deadly Questions Thank you for joining the webinar. We will begin at 10am Mountain Standard Time.
  2. 2. – KPA CONFIDENTIAL – KPA – Company Profile • Nationwide compliance expert on Safety, Environmental, HR • Colorado Headquarters • 23 Years Experience • 3000 + Clients – Dealerships, Service, Repair • 20 Offices Serving 41 States • Compliance products and services – OSHA – DOT – EPA – Workers’ Comp – Background checking – Onboarding – Harassment – Red Flags – Onsite inspections – Online and onsite training and tracking – And many more…
  3. 3. – KPA CONFIDENTIAL – Presenter John P. Boggs, Esq. Fine, Boggs & Perkins LLP (650) 712-8908 jboggs@employerlawyers.com
  4. 4. – KPA CONFIDENTIAL – Questions • If you have questions during the presentation, please submit them using the “Questions” feature • Questions will be answered at the end of the webinar
  5. 5. – KPA CONFIDENTIAL – Agenda • Performance Improvement Plans – Performance Deficiencies – Rule Violations • The Ten Deadly Questions • Termination Checklist • Conducting the Termination 55
  6. 6. – KPA CONFIDENTIAL – 1. Performance Deficiency * Follows the Rules but just can’t live up to expectations 2. Rule Violations * May perform well but can’t seem to follow the rules COMBINATION OF BOTH Two Reasons for Discipline or TerminationTwo Reasons for Discipline or Termination
  7. 7. – KPA CONFIDENTIAL – Rule Violations F.I.N.E. Find Published Rule (Employee Handbook) Identify Specifics of How Rule was Broken Notice as to What is Expected Explain Outcome if Continues or Decision Now Discipline/Termination
  8. 8. – KPA CONFIDENTIAL – Performance Deficiencies N.E.A.T. Notice of Expected Standard Explain 1. Performance Deficiency 2. What Must Be Done Assistance to Improve Time to improve Discipline/Termination
  9. 9. FALSE PRETEXT The reason given for discipline was untrue; and -The true reason for discipline was discrimination. -Discrimination is considered to have been a “reason” if it was a motivating factor. Avoidance The Appearance ofAvoidance The Appearance of DiscriminationDiscrimination
  10. 10. 1. Do you feel comfortable after your investigation that you will be able to prove, with evidence, that the employee violated the rule, or the standard of performance was not met, and that you have treated other similar situations with the same level of discipline in similar circumstances? Legal Liability Checklist
  11. 11. 2. Are there any prior commitments (written agreements or promises) in employee's personnel file regarding a specific term of employment, continued employment or a requirement of just cause for termination of employment? Legal Liability Checklist
  12. 12. 3. Are there any complaints or claims (formal or informal) that the employee has made against the company, any co- worker, customer or vendor? (e.g., harassment, discrimination, retaliation, unpaid wages, workers compensation claims, safety issues, labor regulation violations, dishonesty, customer fraud or other claims that the company violated the law in any way, etc.) Legal Liability Checklist
  13. 13. 4. If the employee falls into a "protected category" (e.g., minority, race, religion, color, sex, sexual orientation, national origin, ancestry, citizenship status, uniform service member status, marital status, pregnancy, age/over 40, medical condition—cancer related or HIV/AIDS related, disability, or transgender status), does the employee's "protected category" represent a relatively small portion of your workforce or the employee's work group. Legal Liability Checklist
  14. 14. 5. Has the employee taken any leaves of absence within the last year? (Medical leave, Family Care leave, Pregnancy leave, Drug/Alcohol Rehabilitation leave, Workers Compensation leave, etc.) Legal Liability Checklist
  15. 15. 6. Have you disciplined others for this same general rule violation or performance deficiency? Legal Liability Checklist
  16. 16. 7. Has the level of discipline imposed been substantially the same for the same violation or performance deficiency for other employees? Legal Liability Checklist
  17. 17. 8. Have you failed to discipline anyone for the same general rule violation or performance deficiency, even though some other employees may have been disciplined for it? Legal Liability Checklist
  18. 18. 9. Have you given different levels of discipline to different employees for the same general rule violation or performance deficiency? Legal Liability Checklist
  19. 19. 10. Do you plan to terminate the employee? Legal Liability Checklist
  20. 20. Does Your Investigation Prove it? • Document the complaint • Who, What, When, Where, Witnesses, etc. • Collect Relevant Documents Build Your CaseBuild Your Case
  21. 21. Rule Violations • Investigative Statements or Questionnaires • Written Record of Investigation • Signed Under Penalty of Perjury • Interview the Accused • Have a Witness • Complete & Sign the Statement • Suspend the accused pending completion of the investigation Build Your CaseBuild Your Case
  22. 22. More Investigation = More Credibility • Confront the Accused – A Chance to Explain • Have a witness • Prepare a wrap-up memorandum • Prepare a written termination notice • Consult counsel prior to termination Build Your CaseBuild Your Case
  23. 23. Misconduct Termination • Follow up with Statements for other witnesses if necessary Build Your CaseBuild Your Case
  24. 24. Find out what has been done in similar situations in the past. Also consider whether any other employees currently are in a similar situation. Compare the protected categories of current and former employees in similar situations. Avoid Discriminatory DecisionsAvoid Discriminatory Decisions
  25. 25. Determine if you can distinguish leniency in similar situations. Document why current discipline scenario is different than other non-discipline scenarios. “Start Fresh” and hold back on more severe discipline Avoid Discriminatory Decisions
  26. 26. • Do not terminate in anger or with enthusiasm • Require a second approval within the organization • Suspend pending investigation • Contact counsel prior to termination • Identify the Land Mines Termination Considerations
  27. 27. FREE CONSULTING TIME!!!
  28. 28. Contact Us www.kpaonline.com bross@kpaonline.com 866-356-1735 2828 A copy of the recorded webinar and presentation slides will be emailed to you today.

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