Common Public Sector Employment Issues
Common Public Sector Employment Issues
In this seminar, we will cover the following employment issues:
1. Background Checks
3. Disciplinary Action
The Role of Background Checks
When making personnel decisions, based on background checks, including: hiring, retention, promotion or reassignment you must comply with federal laws.
Request for background check information must be given in a stand alone document.
Actions Based on Background Checks
Before you take action you must:
Provide the employee notice that includes the consumer report you relied on.
Provide the employee with a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act.”
After you take action you must:
State that the decision was based on information in the report.
That he/she has the right to dispute the accuracy of the report.
Most courts follow the 8th Circuit test developed in the 1970’s:
1. Nature of the crime;
2. Time elapsed since crime; and
3. Nature of the job.
Denial of job requires:
A. Notice that crime was reason;
B. Opportunity for applicant to respond; and
C. Reconsideration by employer.
“Ban the Box” Initiative
An initiative designed to give job seekers with criminal convictions a “Fair Chance” at employment.
Bans the use of conviction history questions prior to evaluating whether the employee is qualified for the position.
Fair Chance policies have been adopted by 19 states and over 100 cities.
Iowa does not currently have a policy, however, various policies exist in nearby: Nebraska, Minnesota, Illinois, and Colorado.
Equal Employment Opportunity Commission Position
In April 2012, the EEOC issued Enforcement Guidelines on criminal background checks.
Employer’s use of criminal background checks in making an employment decision can be presumed to be discrimination on the basis of race or national origin.
Based on disparate treatment or disparate impact theories of discrimination.
This is the EEOC’s position, it is not a position that has been widely adopted by the courts.
The Only Rule to Remember
IF IT WASN’T WRITTEN DOWN IT DIDN’T HAPPEN!!!
Juries draw negative inferences from the absence of documents.
Written records refresh memories.
Establishes that similarly-situated employees treated same.
Courts give greater weight to documents than to memories.
Suggestions for Documentation
Assume ALL documentation will end up in a court of law.
Prepare documentation as soon after the incident as possible.
Give an opportunity to improve.
Avoid Jargon and use understandable language.
Narrate a story.
The Role of Voice & E-mail
E-mail and voice mail are effective forms of documentation to protect yourself.
A short e-mail to an employee is sometimes all that is needed.
If you do not make e-mail or voice mail work for you, it will most likley work against you and the company.
The Role of Performance Evaluations
When disciplining or terminating for ongoing job performance, the performance issues must be documented.
The first place courts look is an employee’s past performance evaluations.
Performance Evaluation Best Practices
A “Good” employee evaluation is one that is balanced, accurate, and properly documented.
Identify areas for improvement.
Coordinate employee’s goals with Employer’s goals.
Set expectations and consequences.
Describe performance instead of merely “checking a box.”
Ensure all employees perform their assigned duties and responsibilities in an effective and efficient manner.
Evaluate and discuss performance with employees.
Apply disciplinary action.
Treat all employees fairly.
Act in a manner that does not demean or label employees.
Traps to Avoid
Becoming angry or defensive
Not asserting yourself
Trying to counsel the employee
Believing you can change the employee
The Discipline Decision
Did the company give prior warnings of the possible consequences of the conduct?
Was the company’s rule or the supervisor’s order reasonably related to the efficient and safe operation of the company?
Did the company obtain sufficient evidence?
The Discipiline Decision
Did the company investigate?
Was the company’s investigation objective?
Was this termination consistent with past actions?
Was the amount of discipline “reasonably related” to the offense?
The Discipline Decision
Once discipline is determined to be an appropriate action by the employer, the employer must review what disciplinary action was taken in similar circumstances.
DISCIPLINE ISSUED TO ONE EMPLOYEE MUST BE COMPARABLE TO DISCIPLINE RECEIVED BY ANOTHER EMPLOYEE FOR A SIMILAR VIOLATION.
If the discipline is more severe, documentation must show why.
If the discipline is less severe and the other employee finds out, he/she may believe they were treated more harshly/unfairly.
Common Termination Issues
Every employee is a member of a protected class!
A large number of retaliation cases are brought when the underlying discrimination claim has no merit.
Examples of illegal off-duty activities:
If an employee is sentenced to jail time, justification for discipline may not be the crime they committed, but the fact the employee cannot fulfill their obligation to report to work.
Courts have upheld the legality of termination or discipline for off-duty behavior that negatively impacts the work environment, job performance, or employer’s reputation.
Concerted activity” is protected activity
When employees are discussing terms and conditions of employment with fellow employees.
Therefore, employees have the right to make comments on social media about their wages and working conditions with their co-workers.
Brian learned on Saturday that John had planned to complain to HR about Brian and several other employees work.
That Saturday, Brian posted on his Facebook page: “John feels that we don’t help our clients enough. I about had it! My fellow co-workers how do you feel?”
The employer fired Brian and four other employees that commented on the Facebook post for violating the employers harassment policy.
HOWEVER, the court found the employees were engaged in concerted activity—therefore wrongfully terminated.
An employee's social media activity is protected “concerted activity” if it:
Involves other employees
Relates to the shared terms and conditions of employment
Is not an activity that is otherwise carried out in a reckless or malicious manner
Social media activity that is not protected could include:
Communications unrelated to the terms and conditions of employment
Posts protesting the quality of services provided by an employer only tangentially related to employee terms and conditions of employment
Expressions of an individual gripe.
Thank you for your attention.
Matthew S. Brick
Brick Gentry Law Firm
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