Professional Documents
Culture Documents
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Reductions in Force
Reductions in Force (RIFs) usually include large numbers of age-protected workers.
Because RIFs are driven by the need to cut costs, highly compensated employees, which as a
group tend to include a high number of older workers, often are targeted for layoff.
If you are faced with having to engage in a RIF or group layoff, you need to compare the
ages and personnel file information of all those selected for termination with the ages of and
personnel file information for employees who have not been selected. You should perform
this adverse impact analysis early in the layoff decisionmaking process so that changes can
be made if the analysis shows that a disproportionate number of older workers will be part of
the layoff. If your analysis does show a disparate impact — that older workers as a group are
impacted adversely — you should reconsider the group selected for termination.
Early Retirement
Employers sometimes offer early retirement incentives to coax older, higher-paid
employees to retire earlier than they might otherwise have. These plans are permitted by the
ADEA, but they must be voluntary. Making workers choose between early retirement and
being fired is not voluntary (Herbert v. Mohawk Rubber Co., 872 F.2d 1104 (1st Cir. 1989)).
The Older Workers Benefit Protection Act (OWBPA) amended the ADEA to make sure
workers who were eligible for or near retirement were not treated unfairly by employers
anxious to hire younger workers at lower salaries. The OWBPA has specific provisions for
pension plans, early retirements and deductions from severance pay.
Under the law, the end of the accrual period or a reduction in the rate of accrual of
defined benefit plans — those in which benefits are predetermined at the beginning of plan
participation and the amount required to fund the benefits is contributed — cannot be based
on age.
For defined contribution plans — those in which a predetermined amount is contributed
annually and the end benefits are the result of those contributions and whatever earnings are
made on their investment — neither the rate of allocations nor the end of those allocations
can be based on age.
Performance Evaluations
Performance evaluations are the basis for important business and legal decisions. They
are used in determining compensation, promotions, transfers and terminations. For these
reasons organizations must hold supervisors and managers accountable for the performance
evaluation process. Most importantly, managers need to be trained how to properly evaluate,
counsel, document and discipline their subordinates so that poorly prepared evaluations do
not open the door to legal jeopardy should an employee file a discrimination complaint.
Before managers can begin to write performance reviews, it is important to ensure
that performance ratings are based on fair, clear and objective performance criteria. The
criteria should support your company’s culture, values and business strategies and should
include clearly defined goals and job-specific competencies. The more clearly articulated
and behaviorally anchored the criteria are, the greater likelihood there will be reliability and
consensus among different raters.
Oral Warning
The major purpose of any disciplinary policy is to correct the problem and prevent
recurrence. Therefore, when a problem or problems arise, managers should not wait, but
should immediately speak with the employee in private and suggest a course of action
to improve the situation. Discussions should be carefully documented and placed in the
employee’s file.
It is equally important to follow up with the employee to make sure the course of
action has been implemented and progress is being made. Managers should specify the
consequences if the improvements are not made.
Written Warning
If an oral warning fails to rectify the employee’s performance issues, the manager should
implement and monitor a performance improvement plan. The PIP should define the problem,
outline the solution (performance goals that must be met for the employee to keep his job),
determine how often the manager and employee will meet to discuss progress, indicate a
timeframe for progress to be made and specify the consequences if the goals and objectives
have not been met. The manager should sign the form before giving it to the employee.
After discussing the PIP with the employee and making sure the employee understands
the reasons for the disciplinary notice, the employee should be asked to sign and date the PIP,
acknowledging its receipt. Then the notice should be placed in the employee’s personnel file
and a copy given to the employee.
These meetings should be positive, constructive and supportive. The best approach to
handling conflict is collaboration. If an employee cannot do something, the manager should
revisit the goals. The manager should express confidence the employee can accomplish the
Suspension
Suspension is the most severe form of disciplinary action short of termination. It is
usually given after an employee has already received a written warning and has failed to
make sufficient improvement. Suspension should only be considered after the manager or
supervisor has had time to conduct a thorough investigation.
Before implementing a suspension, the manager should outline the facts leading up to
the suspension, the reasons for the disciplinary action and the duration of the suspension. The
manager must give the employee a chance to respond. The original copy of the notice should
go into the employee’s personnel file and a copy be given to the employee.
When an employee returns to work after being suspended, the manager should ensure the
employee can get back to his or her job with as little damage to reputation as possible.
If the poor performance continues, the manager should discuss the problem with human
resources and arrange for a follow-up meeting between the employee and the human
resources representative. At this meeting, the employee should receive a written notice of
the action or performance that must be corrected. There should be language in the notice
that states that failure to comply could result in termination. Managers should exercise
care in their written notices so that nothing might be seen as a reference to the employee’s
psychological or medical condition or as an attack on his or her character.
In dealing with difficult employees, it is always a good idea to have a witness present
(someone from the human resources department or another manager).
Termination
In today’s litigious society it is extremely important for companies to establish and follow
to the letter their policies on termination. For many years, managers could fire at their own
discretion; however, with the increased number of wrongful termination cases and high jury
awards that can result, companies must exercise caution before deciding to terminate an
employee.
The decision to terminate an employee should not be made solely by the employee’s first
line supervisor. At least two levels of management should be involved and in difficult cases,
an employment law attorney should be consulted before the decision is finalized.
Before terminating an employee, you should ask a number of questions:
• Have alternatives to discharge been considered (i.e., last chance agreement, demotion,
option to resign or settlement agreement)?
• Is the employee a member of a protected group?
• Does the employee have a recognized disability?
• Does the employee have a written contract?
• Has the company been consistent in employing its rules and standards?
• Is there a basis for a retaliation claim?
What Is Alleged?
Every claim has its own requirements and its own defenses. A hiring case demands
different elements of proof than a termination case. An Equal Pay Act claim is on a totally
different track than a failure-to-promote case. A harassment claim has its own unique set of
requirements and defenses, as does a disability claim. Take the time to figure out precisely
what is at issue.
Do I Call My Lawyer?
Generally, the answer to that question is “yes.” The company lawyer should be contacted
as soon as possible after notice of charge is received. The most important reason to call your
lawyer early is to help you analyze and assess the charge itself. Even the most experienced
HR professionals need help understanding what an employer’s responsibility is concerning
the interactive dialogue in a disability case or when an ailment might not be a disability.
The same is true regarding the standard of proof in an Equal Pay Act case. You may know
that in a sex harassment case the employee is supposed to complain before filing a charge, but
do you know when that is not required? Your lawyer should.
The company should speak in a single voice from its first response to the EEOC — the
“statement of position” — on. In jurisdictions where EEOC pleadings may be discussed and
introduced at trial, it does not assist the employer’s position to have more numerous defenses
in the court pleadings than before the EEOC, or worse, an entirely different theory of what
happened. Having all responses come from your lawyer right from the start will solve these
problems.
Involving your lawyer, including in-house counsel, creates the attorney-client privilege of
confidentiality. The value of being able to discuss matters relating to the charge in complete
confidence is difficult to over-value. Theories, thoughts, even hunches should be part of what
you consider when examining allegations, but it is only prudent to reveal those under a veil of
privilege. Moreover, the ability to create drafts of documents, including settlements, that may
not be disclosed because of the attorney work-product privilege is of inestimable value.
The final reason to notify your attorney early is so he or she can prevent you from making
a mistake that turns a losing claim into a winning one. It will pay in the long run to talk to
Employer Investigations
The investigation may be the most important part of a company’s defense, but an
investigation is no better than the investigators. Not everyone, and not even every HR
professional, is a good investigator. Consider training your investigators or, in appropriate
circumstances, bring in outsiders, and always under your lawyer’s guidance.
Elements of Investigations
An investigator must know what to look for and how to look for it. A good investigator
should know the legal elements of the claim and of its defense. Here are some other basics for
an in-house investigator to keep in mind:
1. Don’t judge; listen. This is not about you.
2. Take excellent, thorough notes. These will be the employer’s first-line of defense.
3. Separate first-hand accounts from gossip. Conclusions can only be based on what can
be proven.
4. Be skeptical with everyone. Even your closest colleagues can get it wrong, if only
inadvertently.
5. Get it in writing. Any event worth investigating is worth reducing to writing and
getting signed.
6. Do not give rise to a retaliation charge because of the investigation. It is important to
require employees to cooperate with an investigation, but do not threaten or harass
anyone regarding the substance of the testimony.
7. If reaching a conclusion is part of your role, reach one. Many outside investigators
only collect and present information. In-house investigators will almost certainly be
asked to make a recommendation regarding discipline, even if everything must wait
for the outcome of the EEOC proceeding.
Assessing Claims
Is this a valid claim? If valid, how strong? If bogus, how credible? Would it be cost-
effective to reach an early settlement? If you defended the claim, what would it cost (1)
through the EEOC process, (2) through summary judgment, and (3) through trial? What other
factors are to be weighed?
When deciding what to do about a discrimination claim, you need to consider your
employees’ morale and company image. If employees believe the claim is bogus, even a
cheap settlement may cause friction. On the other hand, not many companies want publicity
about claims of race or sex discrimination, even if they are untrue.
Some companies do not wish to be seen as being an “easy mark” and want to defend
every action. If their policies, practices and training are top notch, that may be the best
approach. If mistakes were made, it might be better to settle early.
Responding to Charges
Every employer against which an EEOC charge is filed is asked to submit a “statement
of position.” You should regard this as your first best chance to win a positive determination
from the agency. In some respects, the statement of position can be considered a first draft of
your summary judgment motion in court, should you reach that stage.
A good statement of position should do more than simply tell the employer’s story.
It should do so in a thorough and systematic way. A good statement routinely refers to
documentary evidence and relies on sworn declarations from appropriate witnesses.
The declarations are essential. In today’s mobile society, it is more than likely that your
witnesses will have left the company (some in unhappy circumstances) if and when a court
case is filed. Taking statements from the key witnesses at or near the time of the events cannot
be over-valued, because the closer to the event, the better the recollections and the more
credible the recounting will be.
For early declarations to be useful one or two years later during a court proceeding, you
must have arrived at your theory of defense early and begun speaking with a single voice.
A good statement of position sets forth the relevant factual background and it places the
facts in the appropriate legal context. This is where consultation with your lawyer may be
necessary.
The statement is the appropriate place to challenge the statute of limitations, to assert that
you do not have the required number of employees to be covered by the discrimination law at
issue, to assert that the charging party is an independent contractor not covered by the law, to
dispute the existence of a prima facie case and to question whether the necessary elements of
On-Site Reviews
An investigator has the option of requesting an on-site visit for the purpose of reviewing
documents, examining the premises or, more commonly, to interview employees. Although
the commission has a right to do so, you can influence the event.
If, for example, the purpose of the on-site visit is for interviews, you can suggest that
they be held at your lawyer’s office or a more convenient company facility. That moves the
investigation out of your workplace and lets the investigator know that your counsel will be
present. If the on-site visit is at your workplace, you can determine the time when it would be
least disruptive or when the most interviewees will be present.
You should take these interviews seriously. The employees should be told of their right
to have counsel present and should be offered the chance to meet with you and/or counsel to
Fact-Finding Conference
Although fact-finding conferences are most commonly limited to cases in which the
charge arises from a discriminatory policy or in age discrimination cases, some investigators
use them in lieu of interviews. Your counsel has a limited role, mainly trying to guide the
investigator.
Nonetheless, these can provide valuable opportunities to educate the investigator and
opposing counsel, should one attend. As a result, your witnesses should be prepared to testify
and to answer questions about the event at issue. In rare instances, the charging party will
learn that some of his or her basic understandings were wrong, and change position as a
result.
Determination Letters
At some point, and it may be after a considerable amount of time, the EEOC will issue a
“determination letter.” These determinations are all but worthless from a procedural point of
view, as the charging party has the right to sue you regardless of the EEOC’s determination.
No Cause/Right to Sue
The commission has a number of options. The most common is to dismiss the charge
“without particularized findings.” That is what used to be called “no cause” letters.
This means that the commission found no cause to believe a violation has occurred.
Sending a determination letter serves as a “right to sue notice.” The charging party has 90
days from the receipt of the letter to file suit or be barred from doing so.
For Cause
At the other extreme is a “for cause” determination. This means that the legal unit in the
district office has concluded that “it is more likely than not” that discrimination occurred.
This does not mean the EEOC will be suing you.
Post-Determination Conciliation
In the event of a “for cause” determination, the EEOC will offer the opportunity for
formal conciliation. Since the emphasis on mediation, conciliation has fallen into greater
disuse. Nevertheless, conciliation offers the employer another chance to bring the matter to a
close before a complaint is filed.
Punitive Damages
The U.S. Supreme Court addressed the circumstances under which punitive damages
may be awarded in an action under Title VII. The decision in Kolstad v. American Dental