September, 2008

Hello!

Here it is ... the last quarter of the year! I'm sure that some of the "looking ahead to 2009" that began in September is continuing and that upcoming personnel changes may soon be a reality.

This month's "Tips and Tools" continues (from last month) with additional tips for your hiring and termination planning. You will find two major articles further down on this page:

• The New Kind of I-9 I.D. You Must Accept
   
• The 6 Kinds of Terminations ...
  And 6 Corresponding Ways to Avoid Being Sued

But first enjoy this month's quiz. Under federal law, how much paid time off must employers give employees to vote? There is no federal law that requires employers to give employees paid time off to vote. It depends on whether it is a presidential election. One Hour Two Hours  Three Hours  Answers found at the end of our main article.

Let's now go to our main articles with tips you can use for your hiring and firing activities.

U.S. employers must accept the new wallet-sized passport card -- a portable alternative to the traditional passport book as an acceptable document for completing Form I-9s, the U.S. Citizenship and Immigration Services (USCIS) has announced.

The passport card should be considered a "List A" I-9 document that may be presented by new hires during the employment eligibility verification process. "List A" documents are those used by employees to prove both identity and work authorization when completing the Form I-9.

The new cards aim to speed up document processing at land and sea ports-of-entry for U.S. citizens traveling to Canada, Mexico and the Caribbean. They can't be used for international air travel. The Department of Homeland Security began rolling out the new cards in July.

The recent USCIS announcement confirms that the new passport cards are a valid passport that attests to the U.S. citizenship and identity of the bearer. Accordingly, the card may be used for the Form I-9 process and can also be accepted by employers participating in the E-Verify program.

For details, go to www.uscis.gov or call USCIS at (800) 375-5283.

I-9 Do's and Don'ts

When it comes to verifying employment eligibility for your workers, sidestep potential legal trouble by following these I-9 do's and don'ts:

1. Do require all new hires to complete and sign Section 1 on their first day of work. 
    
   
2. Don't ask an applicant to complete an I-9 prior to extending a job offer. Information on the I-9 could be used as a weapon in a discrimination lawsuit if the applicant is not hired. 
    
   
3. Do review the employee's documents to make sure they are on the Form I-9's list of acceptable documents and to make sure they appear genuine. 
    
   
4. Don't ask the employee for any particular documents or more documents than required by the I-9. The employee chooses the documents, not you.
    
   
5. Do establish a consistent procedure for completing I-9s and educate your hiring managers. 
    
   
6. Don't consider the expiration date of I-9 documentation when making hiring, promotion or firing decisions. 
    
   
7. Do make and retain copies of all I-9 documentation employees provide. These documents will come in handy in the event of an audit. 
    
   
8. Don't forget to keep a tickler file to follow up on expiring documents (except U.S. Passports - expired passports are acceptable documentation) . Notify employees of the need to re-verify documentation 90 days before the current documents expire. 
    
   
9. Do keep the Form I-9 and copies of an employee's documents for three years after the date of hire or one year after termination, whichever comes later.
    
   
10. Don't put the Form I-9 in an employee's personnel file. To protect your company against discrimination claims, keep the I-9 and supporting documentation in a separate file.

Copyright © 2008 NIBM. All rights reserved.

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The 6 Kinds of Terminations ... And 6 Corresponding Ways to Avoid Being Sued

Employment terminations fall into several categories. Whether the situation involves new hires who didn't work out, firings for cause or performance issues, or voluntary resignations, terminations often lead to litigation. For each type of termination, there are some common ways employers can make sure they can defend themselves if challenged.

1. New Hires
   Employers sometimes need to let go of new or relatively new employees who repeatedly fail to perform expected job functions at an acceptable level.
   
   Take, for example, new workers who repeatedly make simple mistakes. Those workers often challenge their dismissals if they did not know about performance expectations or had no training. They also may sue if they believe the employers did not fairly apply the rules -- that is, they know of other employees who did not perform and yet kept their jobs.
   
   The key to defending these kinds of claims is to completely document the training and any failure to meet expectations, while showing that you uniformly applied the rules. That can be a problem if some supervisors enforce the rules differently than others.
    
   
2. Absenteeism
   Some terminations occur when employees miss work. Again, documentation is critical. An employer must document that it notified the employee of the attendance policy and the employee failed to comply. The employer also must show that it uniformly applied the policy.
   
   Lawsuits often happen if the absence qualified for protection under the FMLA, the ADA or state law (such as absences for jury duty). Make sure no one uses protected absences as the basis for termination decisions.
    
   
3. Misconduct
   Misconduct terminations occur when an employee violates a significant good conduct rule by stealing, being insubordinate or committing some other serious offense. An employee in this situation often claims he or she was "found guilty" of the violation based entirely on management's report to HR.
   
   The employee claims he or she had no opportunity to offer an explanation. It is too late to get the worker's side after termination. As part of a thorough investigation, prudence calls for getting the employee to provide an explanation before a decision is made. While the investigation progresses, the employer has the legitimate option of placing the employee on a leave of absence.
    
   
4. Suddenly Declining Performance
   One of the most complex and potentially litigious terminations is the "performance-related" type, in which an employee who was previously performing well, no longer is. The employee's performance actually may be changing or management's perception of the employee's work may have changed. Sometimes it's both.
   
   For example, a stressful family situation or illness may distract the employee at work, resulting in poor performance. On the other hand, a new supervisor, different job duties or even a different performance evaluation system may lead to a judgment that the employee now is performing poorly.

   In these cases, a prudent course of action is to go slow. Include the employee in your discussions about the cause of the decline and look for ways to improve. Be sure to document those discussions. Eventually, something could change for the better.
   
   If it doesn't, you will want to be able to say you made a reasonable effort to help the employee keep his or her job. The employee also is less likely to feel he or she was unfairly treated.
   
   Employers should try to develop objective evaluation systems that don't rely solely on any one supervisor's subjective opinion.
   
   Also, make sure any change in performance perception doesn't coincide with the employee asserting rights under federal or state employment law such as filing a sexual harassment suit or requesting FMLA leave.
    
   

5. Resignations
   It might seem counterintuitive to expect employment claims when an employee quits rather than being fired, but employees can say they were "constructively discharged." If the former employee can show that working conditions were so intolerable that a reasonable person would feel there was no alternative but to resign, then the resignation is equivalent to a discharge.

   Constructively discharged workers have the same rights as fired workers. So, when an employee quits, it may be tempting to tell him or her, "Good riddance!" But a safer strategy is the opposite: Ask them to reconsider and invite them to come back to work. Doing so may preclude a constructive discharge claim, or at least make it easier to defend.
    
   

6. The Dangerous "No Reason" Termination
   In an employment-at-will state, an employer that has done what is necessary to retain its at-will status does not need to have a good reason (or any reason at all) to terminate an employee. However, employers rely on this rule at their peril.
   
   Everyone expects some reasonable explanation for a termination, especially if the employee is a member of any protected class (e.g., race, gender, age, religion, disability). To defend a discrimination claim, the employer must be able to articulate a legitimate, nondiscriminatory reason.
   
   Consider this scenario: A year after the termination, the employee sues. The supervisor who made the decision no longer works for the company. No one documented the rationale for the termination at the time. And now you have to explain to a jury why this employee was fired.
   
   Always have the decision-maker document the reason for the termination!

Copyright © 2008 NIBM. All rights reserved.

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Answers To This Month's Quiz:
#1 is Correct.
There is no federal law that requires employers to give employees paid time off to vote.

Explanation: There is no federal law that requires employers to give employees paid time off to vote, but some states do have laws that regulate this area. States with laws requiring time off to vote include Arizona, California, Colorado, Nevada, Texas and 26 other states. Be sure to check your state's laws before denying an employee time off to vote. (c) hr.blr.com

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