Defending Through DocumentationPresented by: Donna King PerryCatherine Salmen WrightDinsmore & Shohl LLP101 South Fifth Street, Suite 2500Louisville, Kentucky 40202(502) 581-8000Donna.Perry@dinsmore.comCatherine.Wright@dinsmore.com

Goals of Documents

Educate employees Manage employees Provide evidence that employee was made

aware of policies Provide evidence that employee made aware of

changes to policies Make employees aware of procedures for

complaints

Maintaining Files

Properly compiling personnel files from day one can give you an advantage in subsequent lawsuits for breach of contract, discrimination or wrongful discharge claims.

Employment Applications

Key elements and statements to include:1. Date -- for purposes of determining when a

statute of limitations period might run.2. Statement that any offer is contingent upon

pre-employment screening and favorable references. A form for reference checking may be included on the application, but is better to keep separately with a waiver signed by the applicant which can be easily submitted to former employers.

Employment Applications

3. At-will clause - - the application also serves as further documentation of the employment at-will. Applicant should be on notice that, if hired, the employee can be terminated with or without cause or notice at any time.

Sample At-Will Language

I understand and acknowledge that neither this application nor acceptance of employment with the company shall be used, construed or deemed to create a contract of employment, expressed or implied or any other promise of any kind. No commitment to employ for any specified duration and no contract for employment, express or implied, shall be valid or binding on the company unless it is expressly set forth in a separate document and signed by the president of the company. The company hires at-will. At the option of either the employee or the company, I understand that employment can be terminated, with or without cause, and with or without notice at any time.

Employment Applications

4. No-misrepresentations clause -- requires the applicant to affirm that all of information provided is true and complete to the best of his knowledge; also warns that any misrepresentations or omissions can result in refusal to hire or termination of employment.

Application/Interview Pitfalls

Avoid questions which directly or indirectly inquire about: 1. Age/Date of birth;2. Race, religion, sexual orientation or national

origin;3. Physical traits, disabilities or handicaps;4. Drugs or alcohol use; or5. Smoking

Initial Documentation/Orientation

Areas to cover:1. Benefits -- vacation, sick leave, discounts,

direct deposit2. Personnel policies -- performance appraisals

and review procedures, complaint procedures, discipline procedures and absenteeism policies

3. Insurance coverage and explanation of COBRA rights

4. Workplace policies -- FMLA, EEO, sexual harassment, and drug and smoking policies

Initial Documentation/Orientation

5. Documentation which employer must provide to employee -- handbooks, manuals and safety information;

6. A list of all paperwork that the employee must complete -- I-9 forms and acknowledgments of receipt for important documents such as the employee handbook, arbitration agreement, and sexual harassment policy; and

7. A signed checklist showing all documents and information the employee received.

Performance Reviews

Train evaluators Conduct evaluations periodically Be consistent with evaluations – in form and

application Be honest in evaluations – document any

serious complaints about employee Follow-up with additional training or corrective

action

Disciplinary Documents

Maintain records of any disciplinary action – oral reprimand, written reprimand and final reprimand.

Inform employee that any reprimand is being reflected in his/her personnel file.

Reflect prior reprimands and warnings in subsequent reprimands.

Have employee sign acknowledgment that he/she has received copy and understands the problems and recommended solution.

Have supervisor sign.

Disciplinary Documents

These documents must be 1. Consistent;2. Objective;3. Detailed; 4. Timely

Follow Through

Once problem is identified – must take appropriate and consistent action.

Cannot create exceptions to policies and procedures -- inconsistent application invites legal action.

Prompt investigation and response.

Pre-termination Risk Assessment

Is this a high risk termination? Member of a protected class Whistleblower Filed complaint or charge with EEOC, OSHA, DOL,

WC Leader in workplace for employee rights or in union Near vesting in benefits

Pre-termination Risk Assessment

Is the evidence conclusive? Is termination appropriate remedy? Is termination for conduct explicitly or

implicitly addressed? Has conduct always been prohibited? If policy change, was employee adequately

notified?

Pre-termination Risk Assessment

Is the evidence conclusive? Have policies and procedures been

consistently applied? Similar instances tolerated or ignored? Progressive discipline plan followed? Violence or safety precautions needed? Legal counsel advised of termination?

Pre-termination Risk Assessment

Is there an express or implied employment contract? Does a contract exist? Does contract address termination? How does contract define “cause” as it relates

to termination? Is there a monetary penalty for early

termination under the contract? Is there a non-compete clause - - to enforce

or not to enforce?

Limits on Right to Terminate

Exercise of Statutory Rights OSHA, garnishment laws, discrimination laws

or wage & hour Right to judicial process – jury duty, subpoena

Refusal to Violate Law Whistleblower

Statutory Exemption:1. Race or color 7. Status as a veteran2. National origin 8. Military Service3. Gender 9. Smoker (Kentucky)4. Disability 10. Requested FMLA leave5. Religion 11. Union Activity6. Age

Right to Terminate Limits

Contracts – Express or Implied

Tort Liability Intentional Infliction of Emotional Distress Defamation

Plan Termination

Get everyone on “team” on same page Include management Avoid:

Surprise to supervisor and direct co-workers

Allowing arguments for or against termination

Unnecessary publication of disparaging facts

Termination Conference

Conduct an exit interview to diffuse problems and minimize future claims.

If employee fails to mention discrimination or harassment as a reason for leaving, may challenge employee’s credibility later.

Termination/Resignation Form

Include: Type of separation Reason for leaving Complaints/concerns Employee’s obligation not to disclose

confidential or proprietary information Complete during or immediately after interview

by someone other than immediate supervisor. Signed by employee, if possible.

Termination Interview

What to Say State only the truth. State facts consistent with reason given for

termination. Be firm, but understanding.

What Not to Say Do not take sides -- everything you say may

come out in court if the employee later sues. Do not sugar coat the termination. If it is for

cause, state the cause.

Waiver, Release and Nondisclosure Agreements

Obtain whenever possible Valid consideration No coercion or confusion Explicit terms and explained to employee Right to have counsel review ADEA requires 21 day review period

Include in Waiver, Release and Nondisclosure Agreements

Provisions to consider: Non-admissions clause Confidentiality Non-disparagement No rehire Tax consequences Nondisclosure of confidential or proprietary

information

Post Termination Responsibilities

Limit information to avoid defamation claim Handling of reference checks

Direct all requests to HR department; Safest to disclose only date of hire, date of

termination, position & rate of pay; See authorization from form employee before

you give more information; Be consistent.

Conclusion

Be Consistent – Do what you say you will do Maintain Accurate Records Document performance issues and disciplinary

actions Plan and follow-through on evaluations and

terminations

Questions?

Donna King PerryDonna.Perry@dinsmore.com(502) 581-8085

Catherine Salmen WrightCatherine.Wright@dinsmore.com(859) 425-1068