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Minnesota Employment Law Part 2: Hiring and Firing Compliance

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Minnesota Employment Law Part 2: Hiring and Firing Compliance

  1. 1. THE TRICKY TRUTH ABOUT HIRING AND FIRING COMPLIANCE Part 2: Terminating SEILER & ASSOCIATES, PLLC 7900 Highway 7, Suite 350 Minneapolis, Minnesota 55426 952.358.7400/ © Copyright 2010 Seiler & Associates, PLLC These materials are for educational purposes only and do not constitute legal advice. Participants and readers should seek the advice of counsel of their own choosing before taking or foregoing any employment related action.
  2. 2. Terminating: Ready… Aim… Fire
  3. 3. 3 An Overview Reasonable and Objective Investigation To Determine Whether The Employee Is Actually In Violation Follow Policies And Procedures In Handbook Collect Sufficient Evidence Compare (Contrast) Prior Disciplinary Actions With The Current Questionable Conduct/Performance Termination Consistent With Past Employees With Similar Circumstances
  4. 4. 4 Under Investigation There Are Always Two Sides To Every Story Get All The Facts Employee’s Work/Discipline History With Current Employer Was The Accused Given An Opportunity To Correct? PIP? Other Disciplinary Options? Confidentiality: Dispense/Share Information On A Need To Know Basis Will All Participants/Witnesses Be Informed? Consider All Options Disciplinary Options Be Consistent With Similar Past Situations Follow Polices & Procedures In Handbook Conduct A Legal Risk Assessment Setting Precedent
  5. 5. 5 The Final Decision Do The Facts Support Your Decision? Proximity of Termination To Salary Increases, Promotions, Etc. Past/Recent Neutral/Positive Opinion Reviews Precedence: Do You Want To Do This Again? Legal Risk Assessment The Big Event: Don’t Back Down! And Stick To It! Know Your Plan Of Attack Stage and Prepare For The Meeting Location, Location, Location: Neutral Assure There Will Not Be Any Interruption Who Is Present? Who Delivers The Message? Who Runs The Meeting? If Necessary, Alert Security Ahead Of Time
  6. 6. 6 Separation Agreements Practical Problems Encourage Employee to Seek Counsel Improperly Drafted/Executed Educating as to Possible Claims General Waivers ADEA Older Workers Benefit Protection Act (OWBPA) All Waivers Under ADEA (40 Y.O./20+ Employees) Written, Specifically Address ADEA Rights and Claims Only Apply To Claims/Rights Through Date Waiver Signed Valuable Consideration In Exchange For Waiver 21 Days To Consider (45 If RIF) Revocable w/in 7/15 Days Of Signing (MN Rule) No Fraud RIFS WARN ACT: Written Notice To RIF Members Of Group Eligibility And Titles/Ages Of Eligible Employees The Final Decision
  7. 7. 7 HR Representative Attends Unbiased Opinion Demonstrates Decision Is That Of The Company, Not Solely The Supervisor’s Listen To Employee’s Response, Yet Stick To The Objective Allow For An Opportunity For Questions Do You Have To Tell Employee Why He Or She Was Fired? Exit Plan Communicated And Followed Escort; Immediate Versus End Of Day; Gathering Of Personal Belongings Document The Day Of Reckoning
  8. 8. 8 Benefits Explained To Termed Employee COBRA 401 (K) Reasons For Termination: Employer Must Provide A Terminated Employee With Reasons For The Termination If The Employee: Provides Written Request Within 15 Working Days Following Termination Employer Must Provide Written Truthful Response Within 10 Days Of Receiving Written Request Defamation Action Prohibited Minn. Stat. §181.933 Personnel Records: Employer Must Provide A Copy Upon Employee’s Written Request Post-Termination:Practical Implications