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3 Forms EVERY Employer Must Use

In today's litigious environment, managers and supervisors need to ensure that they are taking steps to avoiding potential employee lawsuits and fines. "In many employment lawsuits that we have defended, the old motto still applies: 'he with the most paperwork wins,'" says John Polson, employment law attorney with Fisher and Phillips, LLP in Newport Beach, CA.

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Note: Emplicity is not a law firm and does not give legal advice. Please seek the advice of a qualified employment attorney.

#1 Employee Counseling Form

Writing Up an Employee

Check the warning box and write in the type of warning.
Write the facts of the event. (Be as detailed as possible)
Write what the employee has to do to correct his/her behavior and what your expectations are.
Write what may happen if the employee does not change his/her behavior.
Give the employee a chance to write his/her rebuttal if the employee wishes to. It is not mandatory that the employee write something.
You and the employee sign the bottom of the form.
Give the employee a copy of the form.
Place original in employee's personnel file.
If it seems like a sticky situation, get a 2nd opinion and have a witness.

When addressing an employee about behavior remember to do it in private and always have a specific example of what they have done right and what they have done wrong.

Have a witness sign

If you are giving a warning or re-assigning an employee, have a witness present that can attest to what was and was not said. If the employee refuses to sign the counseling form, have the witness write, "employee refused to sign" and sign his or her name.

Remember that the foremost goal of a warning is to change the employee's behavior, not to re-assign him/her. Make sure that you are telling the employee exactly what you need him/her to do. Make your expectations clear and ask if there is anything you can do to assist him/her. Set a follow up date to review the behavior.

If you do re-assign the employee, encourage him/her to call Emplicity immediately. Also please fill out the re-assignment portion of the voluntary resignation / re-assignment form and fax to Emplicity.

Do's and Don'ts

1. Use the traditional "who-what-when-where-why and how."

Consider the following example:

"On Friday May 30, at 2:00pm you engaged in disrespectful and inappropriate conduct and provided substandard customer service when you told a call-in borrower that you shouldn't be asked to make a decision about selecting an appropriate loan program. You then told the customer that you didn't care what program he selected. You ended the statement with the disrespectful remark "geez!" When I later questioned you as to how such a conversation could have come about or why you chose to use a sarcastic and demeaning tone, you told me that you didn't know. You told me you just must have been tired or having a bad day." 2. Use your senses in describing events.

If you are writing up an executive assistant for insubordination and for displaying a bad "attitude", paint a picture with words by describing the employee's specific actions and behaviors that created that perception in your mind. Consider this example:

"On Wednesday May 13, at 4:00 in the afternoon, you walked into my office and loudly complained that the work that I left on you desk should have been completed by the other assistant. I saw you place your hand on your hip, and cock you head, and point your finger at me when you delivered your message. Others heard you raise your voice and speak rudely to me when you said "So what?" and "Big deal!" When you sat down, you leaned over my desk from the edge of your chair, and I sensed that you were attempting to intimidate me." 3. Focus on the behavior, not the employee.

Don't state - "You were hostile toward a customer"(subjective)
Do state - "Your comment to that customer when you told him you didn't care which loan program he picked was rude." (objective)

Don't state - "You left your work area untidy again" (subjective)
Do state - "An eight inch stack of incoming work orders was piled on your desk, your trash can was overflowing, and air conditioning parts were lying on your typing table." (objective)

Don't state - "You appeared at the client's office under the influence of alcohol" (subjective)
Do state - "The client reported that he heard you slurring your words and laughing uncontrollably. He reported that he saw that your eyes were glassy and that you tripped over your own feet when walking across the room." (objective)

Any time you can describe your observations in behavioral terms, you will strengthen your case. Subjective counseling makes it very hard for the counseled employee to save face and very often may create a personal "rift" between both supervisor and subordinate.

#2 EMPLOYEE TERMINATION FORM

AVOIDING WRONGFUL TERMINATION LAWSUITS

Avoiding a wrongful termination lawsuit begins long before the time an employer decides an employee must be fired. Each step in the employment process, including the job application, the interview, the employee handbooks, and the performance reviews, affects the probability that an employer will be faced with a wrongful termination lawsuit. How these steps in the employment relationship are handled is essential to creating a strong defense in the event of a legal action.

Document everything!

When faced with an angry ex-employee and a wrongful termination lawsuit, nothing is more helpful than a personnel file containing documentation showing the employer properly followed an established progressive discipline program, gave the employee honest performance evaluations, tracked the employee's attendance problem, and attempted to accommodate the employee's needs.

Think through the possibility of the appearance of a discriminatory motive before terminating an employee.

This does not mean that you can never terminate a person in a protected class. It does mean that even if the intent to discriminate never crossed your mind, you could be faced with defending an expensive lawsuit because you didn't think through the possibilities first. When faced with the prospect of terminating an employee in a protected class, be sure you have all the documentation you will need to show that the termination is based on legitimate, non-discriminatory reasons.

Train your managers and supervisors thoroughly.

No matter how much you know about avoiding a wrongful termination lawsuit, if your managers and supervisors do not follow your guidelines you will be the one to pay the price. Invest the time and resources to ensure that your managers and supervisors know how to handle problem employees, how to avoid sexual harassment in the workplace and how to ensure that implied contracts of employment are not created.

Be "NEAT" Prior to Discharge.

Notice the employees performance / behavior problem
Explanation as to how to perform job correctly
Assistance in trying to help them improve
Time to try

Special consideration for POOR PERFORMANCE Discharge

Has the employee received help, advice or explanation?
Did the employee know what was expected of him or her?
Was the employee given fair warning of the seriousness of his or her conduct?
Were they given a warning?
Review for potential discrimination. Has the same action been taken in similar cases?
What effect will the discharge have on morale on the employees in the department or Company?

Special considerations for RULE INFRACTION Discharge

Do you have all the facts? What is the employee's disciplinary record, his/her length of service?
Was there a personal problem that led to the employee's rule violation (sickness, death in the family, money trouble)?
Is the employee receiving the same treatment others received for the same offense?
Is the rule that has been violated in writing or "official", or just one of those rules that is "understood"?
In this instance, has the rule been applied "reasonably"?

Discharge procedure

It is important for the decision maker to consider the following elements and always utilize Emplicity's Human Resource Department (just in case a discharge may result in problems):

Is the employee being terminated either disabled, pregnant, over 40 years of age or a member of a minority class? If so, are there any other employees, who are being retained, that have also violated the rule or have performance problems? Is the action taken against the employee consistent with how other employees have been treated?
Is there documentation for the termination? Could the employee reasonably have anticipated that their actions were going to lead to termination?
Is the termination being made in anger?
Is the employee being terminated for threatening to report or for reporting a violation of any federal or state regulation?
Has the employee's personnel file been reviewed to determine if the discharge is consistent with the file? In other words, are there any evaluations or comments in the file inconsistent with the action being taken to terminate the employee? Is there anything in the file that constitutes an agreement regarding the duration of the employee's employment?
Has the employee been given a chance to tell his or her side of the story? Has consideration been given to suspending the employee pending investigation in order to conduct a more thorough investigation of the facts to avoid making the decision in anger? Suspension is extremely important in terminations involving alleged theft, fighting, or drug or alcohol abuse.
Has an investigation been conducted? Did the investigation produce additional evidence supporting the contemplated action? Did the investigation fail to produce evidence that makes the contemplated action improper?
Is the alleged violation of such an unusual nature that immediate removal of the offender from the job site is in the best interest of the employer or the employee?
Are mitigating, extenuating or unusual circumstances claimed by the employee and have they been given due consideration?
In the absence of witnesses, does there exist a history of "differences" between the offender and the supervisor, which might bring his/her fairness and objectivity into question?
Is there a solid business related reason for the decision? Is the employee being told one reason for terminations when in reality there is another reason for termination? For example, is the employee being told that they are going to be laid off when the employee is really being terminated for poor performance?
Has the employee been given sufficient warning that his or her continued conduct will result in termination or is the employee handbook clear that one violation of a particular rule will result in termination?

How to Discharge - CALL EMPLICITY FIRST!

Employees should be advised of the reasons for the termination. You should control the meeting and be firm. Give the employee the opportunity to let off steam, but remember, bitterness is what gets companies sued, not the discharge. Present the employee with their final paycheck, including all vacation time accrued. It is a good idea to have a witness present during the termination, to corroborate what occurs, should the need arise. As well, you may consider utilizing someone to conduct an exit interview and pursue any questions that are raised by the employee concerning the fairness of the discharge.

Always respond to any question raised by the employee concerning the reasons for the termination or handling of outstanding amounts due (according to the employee).

The Golden Rule

A termination should never be a surprise to the employee if you have progressively disciplined them. Every employee should be given the opportunity to correct mistakes. It is your job, as a manager, to coach and counsel your employees. If your employees know what is expected of them, are informed of their performance (good or bad), and are helped in correcting problem situations, you have done your job as a manager. If you are in need of help in any of these areas, please contact Emplicity' s Human Resource Department.

For Termination:

Before beginning any termination procedure, call your Emplicity Human Resource Representative or Labor Cousel!
Check the appropriate reason for re-assignment, or check the other box and write in the reason for re-assignment.
List past warnings if applicable.
Write description of incident if applicable.
Give the employee a chance to write his/her rebuttal if the employee wishes to. It is not mandatory for the employee to write something.
Employer and the employee sign the bottom of the form. (If the employee refuses to sign, document the refusal and initial it)
Give the employee a copy of the form.

#3 DEDUCTION AUTHORIZATION FORM

Deductions to Employees' Pay

In the past, employers have used wages as a means of recovering employee debts. The use of wages as an offset was advantageous to employers because they had sole control over compensation. As a result, employers could, ensure recovery of amounts owed by the employee as the result of loans, advances, destruction of property, and other reasons. Presently, you can no longer legally take such action against your employees.

The ability to deduct amounts from nonexempt (hourly) employee's wages is regulated by the Wage Orders. These Wage Orders state that "no employer shall make any deduction from wages or require any reimbursement from an employee for any cash shortage, breakage, or loss of equipment unless it can be shown that the shortage, breakage, or loss is caused by a dishonest or willful act, or by the gross negligence of the employee."

The law of the land

The Supreme Court's decision states that deductions from an employee's wages normally may not be made as the result of losses sustained by an employer that are beyond the employee's control or are the result of simple negligence, In other words, the employee may not be made the "insurer" of the employers business losses.

Who pays?

The employer will bear the burden of proving the employee's gross negligence, willful misconduct or dishonesty if the employee challenges the withholding, and when an employee prevails the employer must pay waiting penalties (wages continued to accrue for up to 30 days until the employer returns the improper deduction).

Open Tab?

If an employee has received a loan from his/her company and is terminated before the loan has been repaid, the deduction from the final paycheck can only be made for the amount of a normal payment. The full balance due cannot be accelerated to recover a balloon payment unless, at or before the time of termination, the employee expressly authorizes the deduction of the total balance from his/her final paycheck.

Completing the Deduction Authorization Form

Managing payroll deductions can be cumbersome and time consuming. However, accounting properly is only half -of- the -battle. In most cases, an employee's authorization is required when a deduction is made from their payroll check. Many court cases have spawned at the Department of Labor from the lack of permission when garnishing an employee's salary. The following form is an easy-to-use tool to both document and get an employee's approval to deduct their pay.

How much and when?

Fill in the code and/or provide a description of the purpose for the deduction. Then put the maximum amount that the employee has agreed to deduct from each payroll check. If you put a greater amount in the area marked, "goal limit", you can continue to deduct the maximum amount per paycheck until the goal limit is met.

Garnishments

As the employer of record, you are responsible for handling the administration of employee garnishments. The garnishing establishment (i.e. Franchise Tax Board, Superior Court, etc.) will set the rules regarding an employee's garnishment and Emplicity is required to comply with their instructions.

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