2011-08-29
Special August Term
Held August 29, 2011
THE STATE OF TEXAS
COUNTY OF CALHOUN
~
~
~
BE IT REMEMBERED, that on this 29th day of August A.D., 2011 there was begun and holden in the
Commissioners' Courtroom in the County Courthouse in the City of Port Lavaca, said County and State, at
1:30 P.M., a Workshop ofthe Commissioners' Court within said County and State, and there were present
on this date the following members of the Court, to-wit:
Michael J. Pfeifer
Vern Lyssy
Neil E. Fritsch
Kenneth W. Finster
Anita Fricke
County Judge
Commissioner, Precinct #2
Commissioner, Precinct #3
Commissioner, Precinct #4
County Clerk
Thereupon the following proceedings were had:
HEAR FROM TEXAS ASSOCIATION OF COUNTIES ON DOCUMENTING PERSONNEL ISSUES
AND THE IMPACT ON UNEMPLOYMENT AND TAKE ANY ACTION DEEMED NECESSARY:
Mary Ann Saenz gave a presentation called Employment Issues: Avoiding the Legal Landmines And
Documentation Issues, which discussed unemployment liabilities of our county.
Court was adjourned at 3:44 P.M.
'~
(
.c-
...
~'
TEXAS ASSOCIATION of COUNTIES
Employment Issues:
Avoiding the Legal Landmines And
Documentation Issues
Mary Ann Saenz, SPHR
Human Resource Specialist
T 1 X \" A"" ( ) ( I .\ 'I I ( ) \; () / Co l \; I I I S
~ 0 Ulli:9 fI{bW WAm.O
· Employers are paying large $$$ due to charges
such as:
-Wrongful termination
- Discrimination allegations
-Retaliation allegations
- Harassment
8/22/2011
Objectives
I Liability & the i
Myth of "At-Will" :
I ,
_ _ _ _ _ n _ _ ______
~~
~yft=lW
~
~~Sl~
IDll1m 11(:) iO::mim
~€ID!l
~
~
~:(~tfu~
~~
. Comply with ALL legislation
- Federal/State
. Develop compliant employment policies & procedures
. Treat all emplovees consistentlv and fairlv
. Have SPECIFIC and VALID work-related reasons
for actions & decisions
- DOCUMENT those reasons
1
,i
~,'
· Is a right to work law.
· Prohibits disability discrimination by
employers.
· Requires reasonable accommodation in many
situations.
. Covers employers with 15 or more emPIOyee.s~..oc,
.. Covers state and local governments, but :' , \
not the federal government.': :
~ .....
COUllot\
TIX\", ASS(lll\II()X ()/ C()t XIII",
· Employees' and applicants' protection.
· Prohibits medical inquiries in interviews.
· Unlawful to discriminate because of
association with someone with a disability.
· Unlawfultb retaliate due to exertion of
rights.
..... I'I-".oe,......
t ~
* *
!r ~""
COUtI""
'fIXIS AS",O(I\II()X 0/ C()tXI]lS
8/22/2011
· More emphasis on reasonable
accommodation issues.
· Will cover more people.
. New "Disability" definition.
· Regulations out 3/25/11
· EEOC's guidances are coming...
,." to.'.oe"...~
. -
. 0
.. .
*
~ ..""
COUll""
TIX\'- AS",()(I\IIOX 0/ C()lXIII",
, ",,': - <,.~." =:-~....~ j'~'{
~ <>> '" { . 11" ~," t~: ;,i,: L:
· Reasonable accommodation provision.
· Unlawful to discriminate in all forms of
employment practices:
- Recruitment; pay; hiring; firing;
promotion; job assignments; training;
leave; lay~off; benefits; all other
employment related activities.
?.. "".50e"......
: '0
..
*
*
!r ~""
COUll""
TIX\S f\",S()(I\IIOX O(C()IXIII",
3
'.:
~
· Remind everyone involved in the
investigation that retaliation wi! not be
permitted.
Remember.. .Retaliation lawsuits elm out [ve
the original complaint.. .even if the original
complaint did not violate the law!
Discipline
Or should we. call this, "reminders"...
The primary goa.1 of disgipline is to
salvage, nqt punish, tQe employee
8/22/2011
.i" ~ f~~" ~"'~~~.. '
~) Af~ ,f ~;l ~~~'l,~.,'
> ~~ ~ , z"
· Kasten v. Saline-Gobain Performance Plastics
Corp.; U,S, Supreme Court; 3/22/11 (FLSA oral complain, ~n time
clocks placement)
· Title VII retaliation case: participating a
witness (U,S, Supreme Court-reversed-sent back 6th C.lt
Crawford v, Metropolitan Government of Nashville and Davidson City.)
· Thompson v. North American Stainless LP;
u.s, Supreme Court; 1/25/11; (retaliation-was terminated for being a
close familv member that filed a gender discrimination charge with
EEOC)
1. Preventative Discipline
· Preventative Discipline
-Purpose is.to,preventproblems
.' ';:i#r,"f::!.:!!- '":';(','/:i"'-
-Sets work rules & job performance standards.
-Begins with the orientation process
-Not seen as discipline by the employee
5
..:.
I
'~
Documentation:
Letter Format
Or
Action form?
Disciplinary Document
· A time frame to meet the standard set
· A statement of the consequences for failure to
meet the standards set
- Be willing to carry them out
. Employee's signature that he/she has read the
document
8/22/2011
Disciplinary Document
The formal document should include:
. A statement of the problem.
· A statement why the problem is a problem.
· A description of previous efforts.
· A statement what must be done to resolve the
problem.
Disciplinary Document
· Be understandable-be clear with facts and
supporting details.
· Explain expectations for change.
· Detail the consequences on non-compliance.
· Detail specific and achievable goals.
· Detail supervisor's willingness to work on the
problem with the employee.
7
.
~
't
The only reliable method of
proof is:
Docu mentation
Important Because:
Documentation for a Discharge
. State agency requires facts, not
conclusions.
· Claim may be filed a year after
separation.
· Employer must be able to prove
misconduct.
~LJDD
DJJJn[.
OOOQll!!I
8/22/2011
Inability
. "Poor performance", "poor work quality"
not disqualifying cause for dismissal.
. Not construed as disqualifying because
no misconduct is involved.
9
,!
:J
...Documenting the 5 W's
3. Where?
a, Describe location of incident.
b. At work, off-site?
4. When?
a. During regular work hours.
b. Off-duty time?
TEXAS ASSOCIATION of COUNTIES
Employment Issues:
Avoiding the Legal Landmines And
Documentation Issues
Mary Ann Saenz, SPHR
Human Resource Specialist
..
*
TFX'\S ASSO(,J,\TI(),\ oj CO{'i':T1rs
8/22/2011
... Documenting the 5 W's
5. Why?
a, Don't guess.
b, Gather information from all parties.
c, Allow employees to present their side or version
of events/incident.
d. Write a summary to support your findings.
11