EMPLOYEE TERMINATIONS

Becky S. KnutsonDavis Brown Law Firm

HIRING THE EMPLOYEE

Controlling problems at termination begins with effective hiring practices.

Policies should be in place and compliant with applicable law, and

consideration concerning the job and potential employee are vital.

A. Job Descriptions

Job descriptions should be complete, current and consistent with what the employee in the job will actually do.

REFERENCE CHECK INFORMATION AND NOTICE

1. Gaps in employment history2. §91B.2, Code of Iowa – employer

protection for good faith references3. Employer policies

Third Party reference checks

• Fair Credit Reporting Act (FCRA) 15 U.S.C.S. §§1681 et seq.

• New notices for 2013 provide disclosures and employer obligations if credit information is sought – www.consumerfinance.gov

• Signed releases should be obtained for criminal, driving, and credit records

•Licensing Authorities – check status and disciplinary actions•Criminal Records – be careful•“Do you have a record of founded child or dependent adult abuse or have you ever been convicted of crime in this state or any other state?” §58.11(3)(c), Code of Iowa.

•Educational background – have qualifications in place, and comply with FERPA if records are requested directly from schools•Non-compete Agreements – ask for a copy

•Social MediaOMG!

Be very careful – do not “friend”Consider what you need to knowDoes public information match with application and interview information?

INVESTIGATIONS

• Before termination – investigate any incident or problem.

• Actual and apparent fairness is important.• Timeliness is crucial. • Consider who should be in charge. – Internal personnel– External investigators – call your lawyer!

INVESTIGATIONS

• Determine sources of information• Privacy and confidentiality – “need to know”

basis for involvement.• Did anyone else do the same thing?• Has the employee told his or her side of the

story?

INVESTIGATIONS

• Social Media;(!

This may be a source for complaints, policy violations, information to support discipline, and things that you do not want to know

“Let’s be careful out there”

INVESTIGATIONS

• Social Media1. Have very clear policies2. Comply with the law – NLRB allows

“concerted activity”

INVESTIGATIONS

• Internet Usage1. Have very clear policies – enforce them

uniformly2. Check what is saved on employee

computers – it is not private to the employee if there is an employer’s computer used

INVESTIGATIONS• What do policies/contracts allow?• What does the law require?• How should the matter be resolved?• Communicate the results

INVESTIGATIONS

• Documentation – this is vital to a good investigation and later litigation– How is it done?– Where is it kept?

• Follow up– Implement the conclusion– Insure that there is no retaliation

TERMINATIONSA. DOCUMENTATION

• Employee personnel file.• All existing supervisory and work files

regarding the employee.• All worker’s compensation information.• All grievance forms.• Investigation information and conclusions.

TERMINATIONSB. LEGALLY PROTECTED STATUS

• Age• Race• Sex• Color• Physical/mental disability of the employee or employee’s

family member - ADA• National origin• Religion

TERMINATIONS

• Gender preference• Protected activity – NLRB, military leave, FMLA, etc.• Additional state law protections

TERMINATIONSC. Additional Factors• Substance abuse or medical treatment, and

leave accommodations• Employment contracts and union contracts• Defamatory comments, conflicts with

supervisors• Confidentiality• Timing issues

Thank you

Becky S. KnutsonDavis Brown Law Firm