Monthly Compliance Calendar Alert – Keep Your Company Compliant in July: Termination, Corrective or Disciplinary Action, and Off-boarding Process

• _{Not applicable to HUB100 or GHR Hotline Clients}

Holidays

• Independence Day – July 4th

Important Dates and Deadlines for this Month

•      N/A

Topics to Discuss and/or Review

• Make sure policies minimize the risk of litigation and wrongful termination liability. Avoid the following common mistakes:
  • Providing a false, inaccurate, or misleading reason for termination;
  • Terminating the employee for poor performance or misconduct when other employees have not been terminated in similar circumstances;
  • Terminating the employee for a reason that is trivial or unrelated to the needs or goals of the business;
  • Failing to adhere to company termination or discipline policies; and
  • Terminating the employee in violation of a local ordinance, state, or federal statute.
  • Identify risk factors for potential post-termination disputes.  Employees who fall into one or more of the following categories should be handled with extra care in the termination process:
    • Protected categories of employees;
    • Employees who have a record of prior employment-related claims or lawsuits;
    • Employees who previously complained about unfair, unsafe, or unlawful activity in the workplace;
    • Employees who recently engaged in protected statutory activity like taking medical leave, participating in an investigation, or filing a worker’s compensation claim;
    • Employees who filed an administrative charge with the Equal Employment Opportunity Commission (EEOC) or other fair employment practices agency;
    • Employees who previously complained about wages allegedly owed in the form of salary, bonus, or commissions;
    • Employees who have a long-standing relationship with the employer and a consistent history of positive performance evaluations; and/or
    • Employees who worked under an immediate supervisor with a history of disputes with his/her subordinates

2. Schedule and conduct business ethics meetings. For clients with access to the Forms Library, references to this section can be found in the folder, “Conduct.”

• Discuss with employees the importance of proper business etiquette or conduct, the Company’s values, mission, and goals.

3. Review employee Corrective Action forms and/or Performance Improvement Plans (PIPs). For clients with access to the Forms Library, references to this section can be found in the folder, “Performance.”

• Watch the “Hiring Best Practices and Performance Management” Webinar. This features some valuable information on employee performance evaluations and improvement plans. For clients with access to the Forms Library, this webinar can be found in the “Hiring” Folders. 
• When reviewing Corrective Action Forms or Performance Improvement Plans – Make sure there are details about what type of behavior the employee needs to correct, what is expected of the employee, who the employee is to report to, a date for completion or reevaluation, and that the employee acknowledges such plan. All relative documents are to be stored in the employee’s personnel file. 

4. Review the Company’s disciplinary procedures. For clients with access to the Forms Library, references to this section can be found in the folder, “ Conduct.”

• What is the Company’s disciplinary procedure? (Does certain conduct indicate verbal warning, written warning, suspension without pay, or immediate termination).
• When do supervisors/managers act, coach, create and designate a PIP, or require additional training for an employee?
• How do supervisors and managers document disciplinary/corrective action behaviors/conduct?
• How and when are employees terminated?
• Train supervisors and managers on the Company’s disciplinary procedures.

5. Review the Company’s procedures for absenteeism and tardiness to keep in mind for the following year. For clients with access to the Forms Library, references to this section can be found in the folder, “Attendance.”

• Does the Company have a no/call no/show termination policy? (For example, 3 days)
• Does the Company have an attendance point system tracker?
• How do supervisors keep and document attendance records?
• Train supervisors and managers on absenteeism and tardiness policies and report absences of more than three days to HR for FMLA purposes. 

6. Review the process for conducting exit interviews. For clients with access to the Forms Library, references to this section can be found in the folder, “Termination” and the folder “COBRA.”

• Make sure all Company property is restored.
• Settle any debts.
• Provide COBRA information (if applicable).
• Provide any letters of Recommendation. 

7. Go over the process of documentation throughout the termination process, the Termination Decision and Exit Checklists and Termination Letters, Forms, Resignation Acceptance Letters, and Final Pay Acknowledgements. For clients with access to the Forms Library, references to this section can be found in the folder, “Termination.”

• See State Specific Termination packets. For clients with access to the Forms Library, references to this section can be found in the folder, “Termination” > “State-Specific Termination Information & Termination Packets” > Select State.
• Check personnel files for proper and complete documentation to substantiate its decision to terminate, should the employee ever challenge the decision before a fact finder like a judge, jury, mediator, or arbitrator. Check for the following:
  • Accuracy – should be unbiased and treat all employees similarly.
  • Timeliness – Documentation to be entered ASAP after the incident.
  • Disclosure – allow employees to see the evidence, share performance results with employees or show them the discipline report. – allows employees to make changes & correct behavior and have employees sign an acknowledgment of the discipline, potential, future discipline if the behavior is not corrected, and perhaps the possibility of termination if the behavior continues unabated.
  • Confidentiality – disciplinary documentation must remain confidential. Only the employee and managers with a legitimate “need to know” should review performance evaluations or disciplinary reports.
• Review Termination letters – check for the following:
  • Reason for Termination, strive to be specific, but still, avail the opportunity to substantiate its position. For example: 
• Poor explanations for termination:
  • Too specific: The employee was terminated for failing to reach his production quota of 18 widgets per day over the course of a three-week period.
  • Too vague: The employee was terminated for poor performance.
• Effective explanation for termination:
  • Just right: The employee was terminated for failing to meet his production quota.
• Information Pertaining to Prior Warnings or Discipline – This information can be an effective deterrent to wrongful termination claims particularly when documentary evidence supports the prior discipline.
• Post-Termination Benefits – These may include the right to purchase continued health insurance coverage under the employer’s group plan, COBRA, information concerning unemployment benefits, and information pertaining to job search assistance.
• Whether the Employee Utilized the Employer’s Grievance Procedure – Employees may be foreclosed from bringing a post-employment dispute against the employer if they have failed to utilize the employer’s grievance procedure.

8. Determine the required materials needed by State, and when final pay is required. For clients with access to the Forms Library, references to this section can be found in the folder, “Termination.”

• Does your State have its own COBRA? (if CA employer, yes: Cal-COBRA
• Does WARN apply? 
• Are there any notices required upon termination? State law varies. (if CA employer – For Your Benefit, DE 2320, Notice to Employee as to Change in Relationship, employers with 20 or more employees to provide the Health Insurance Premium Payment (HIPP) notice, DHCS 9061, to certain employees covered under the program, Cal-COBRA or COBRA continuation rights, notification of all continuation, disability extension and conversion coverage options under any employer-sponsored coverage for which the employee may remain eligible after employment terminates, WARN Notice if applicable.)
• When and how is Final Pay due? State law varies. 
• Is paid leave included in final pay? State law varies, also check Company policy.

Tips

More information in reference to the topics discussed in this month’s compliance calendar can be found in our comprehensive online Forms Library, which is available to members 24/7. 

Note: This calendar is designed to help our clients review the key human resources-related reporting and notice requirements that may apply to their organizations. Please note that this list is for general reference purposes only and is not all-inclusive. Many of the compliance requirements are complex ERISA or other statutory legal filings and responsibilities may vary depending on your company’s plans. We encourage you to consult with your insurance brokers, plan administrators and/or your ERISA and tax advisors for further guidance.