Basics of Personnel Management

1
Basics of Personnel Management

• Presenter
• Priscilla Riedel-Cohan, MS, RD, LD, SFNS
• PriDe Performance Consulting, LLC

2
Components of Managing Employee Issues

• Discrimination
• Interviewing and Hiring
• Employees Privacy Rights
• Wage and Hour Laws
• Controlling Absence and Managing Leaves
• Performance Appraisals
• Employee Discipline
• Avoiding Wrongful Termination

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Discrimination

• Equal Employment Opportunity
• Prohibits discrimination in employment hiring,
  firing, compensation and terms, conditions or
  privileges of employment on the basis of race,
  color, religion, sex, pregnancy or national
  origin.

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• Affirmative Action
• Prohibits discrimination against any employee or
  applicant on the basis of race, sex, color,
  religion, or national origin and requires
  affirmative action to ensure that applicants and
  employees are employed and advanced in employment
  without regard to race, sex, color, religion, or
  national origin.
• Revisions include requirements for contracting
  companies to take positive steps toward
  eliminating the present and future effects of
  past discrimination against women and minorities.

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• Age Discrimination in Employment Act (ADEA)
• It is unlawful for an employer to fail to, or
  refuse to hire, to discharge, or otherwise
  discriminate against individuals 40 years of age
  or older with respect to compensation, terms,
  conditions, or privileges of employment because
  of age.
• It is unlawful to forcibly retire an employee.
  An exception does exist for executives.
• It is unlawful to give preference because of age
  to one person over another within the protected
  age group.

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• The Older Workers Benefit Protection Act
• Voluntary early retirement plans are permissible,
  and incentives to encourage early retirement are
  also allowed.
• Workers Adjustment and Retraining Notification
  Act (WARN)
• Employers must give 60-day advance written notice
  to employees and local government in the event of
  a closing or mass layoff of 50 or more employees.

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• Rehabilitation Act of 1973
• Government contractors and subcontractors must
  take affirmative action to employ, advance in
  employment, make reasonable accommodation and
  otherwise not discriminate against handicapped
  individuals.
• Americans with Disabilities Act of 1990 (ADA)
• Prohibits private employers from discriminating
  against individuals with disabilities.
• The ADA also prohibits retaliation against an
  employee for taking any action pursuant to the
  Act.

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• Pregnancy Discrimination Act
• An amendment to the Civil Rights Act of 1964 to
  reinforce a prohibition on employment
  discrimination on the basis of sex.
• Equal Pay Act of 1963
• Prohibits pay differentials on the basis of sex.
• Civil Rights Action of 1991
• Overturns certain Supreme Court decisions and
  offers plaintiffs in discrimination suits the
  right to jury trials and the ability to recover
  mental anguish and punitive damages.

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Interviewing and Hiring

• The Recruiting Process
• The Job Requisition
• The form or announcement that a job is open and
  must be filled.
• Job descriptions are an important component of
  detailing the requirements of the position being
  advertised.

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Sample Job Description
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Sample Time and Duties Schedule
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• Sources of Applicants
• Employee referrals
• College placement programs
• Social service agencies
• State employment agencies
• Newspaper/Magazine advertising
• Job fairs
• Fee agencies
• Flyers distributed to customers

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• Processing Replies
• Respond quickly, courteously and legally
• To the extent that it is possible, eliminate
  discriminating information from an employees
  resume or application file before the applicant
  is thoroughly screened for interview.

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• The Employment Application
• Employment applications should be legal.
• Recheck applications periodically to make sure
  they do not include potentially illegal
  questions, i.e. what year did you graduate high
  school.

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Sample Application for Employment
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• Pre-employment Screening
• Employers are wise to invest appropriate time and
  money in recruiting the right employee to
  eliminate potential liability issues.
• Vicarious liability imposes liability on
  employers for the acts of their employees
  performed within the scope of their employment.
• Negligent hiring arises when an employer knew or
  should have known by conducting a reasonable
  pre-employment investigation that an employee was
  not competent or qualified to perform the job.

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• Pre-employment Testing
• The easiest tests to defend are content validity
  tests.
• These include typing tests, requiring a cashier
  to make change or truck drivers to drive a truck.

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• Testing must be lawful in that it must
• measure significant responsibilities of the job,
• predict job performance, have no impact on a
  protected class,
• have a business necessity,
• be administered consistently, and
• administered in the environment where the job is
  usually performed.

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• Pre-employment testing may include
• Skills testing
• Psychological Examinations
• Polygraph Testing
• Honesty Testing
• AIDS Testing
• Drug and Alcohol Testing

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• Conducting Interviews
• Research shows that interviewers tend to like
  persons who look like themselves.
• Those who conduct interviews need to be trained
  on how to conduct interviews using only
  job-related criteria.

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Acceptable Pre-employment Inquiries

• See attached table.

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• Reference Checking
• Identify interview/resume data to be verified.
• Prepare for the reference interview with specific
  questions.
• Open the call by identifying yourself and explain
  the purpose of the call.
• Ask the series of prepared questions.
• Close the call thanking the reference for his or
  her time.

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• Offer Letter
• Letters are excellent ways of making the
  representations for employment known and outline
  the terms and conditions of employment.

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• Considerations when writing the letter
• Quote compensation in the lowest denomination
  possible.
• Avoid mentioning future deadlines or milestones.
• Avoid terms such as permanent or career.
• Be careful of language mentioning a new employee
  probation period.
• Keep the letter brief.
• Keep the letter upbeat, but avoid expressions of
  hope and optimism.
• Send the original letter and a copy along with a
  self-addressed stamped envelope. The new hire
  signs the copy and returns it to the employer.

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• Rejecting Unsuccessful Applicants
• Avoid creating disgruntled applicants by doing
  the following
• Dont set applicants expectations unnecessarily
  high.
• Provide a quick response.
• Give polite, considerate responses.
• Indicate that you have selected the candidate who
  is the best fit for the job, not the best
  qualified.
• Avoid becoming involved in discussing the
  rejected applicants qualifications with those of
  other applicants.

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Employees Privacy Rights

• Protecting Employee Privacy
• Approximately half of the states have laws that
  provide employees some measure of access to their
  personnel file or other records maintained by
  their employers.
• Some state laws allow employees to correct errors
  or omissions in their personnel files.
• No comprehensive federal law regulates employee
  access to records in the private sector.
• Medical information must be treated as
  confidential.

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• Computer and phone usage may be monitored
  utilizing employee acceptable use policies that
  are consistently enforced.
• Employee desks, lockers, and storage areas are
  subject to employer search and seizure. It is
  typically recommended that the employers option
  be noted in the employee handbook therefore
  placing all employees on notice of such potential
  action.

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• Maintaining Lawful Files
• Central personnel files are necessary.
• Local files by supervisors should be limited to
  copies only.
• Reasons for central filing are
• To maintain quality control of documents.
• To help guide uniform treatment of employees.
• To help the human resources department spot
  recurring problems and training needs.
• To help accurately assess and maintain the
  strength of the employers position with regard
  to legal protection.

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Wage and Hour Laws

• Exempt or Non-Exempt?
• Exempt white-collar employees are exempt from
  minimum wage and overtime provisions of the Fair
  Labor Standards Act (FLSA)
• Exemption is NOT determined by the title of the
  job, but by the nature of the duties actually
  performed.
• Exempt employees typically include
• Executive
• Administrative
• Professional
• Outside salesperson

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• Regular Rate of Pay
• Regular rate of pay is usually defined as all
  remuneration for employment paid to, or on behalf
  of the employee, but shall not be deemed to
  include
• Sums paid as gifts
• Payments made for occasional periods when no work
  is performed, i.e. vacations
• Sums paid in recognition of services performed
  during a given period, i.e. sharing plans or
  year-end distributions
• Contributions irrevocably made by an employer to
  a trustee or third person
• Extra compensation provided as overtime pay or
  weekend pay as well as that provided as a part of
  a collective bargaining agreement.

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• Determining Hours Worked
• All employees covered by the FLSA must be paid at
  least a minimum wage for all hours worked and
  overtime for all overtime hours.
• Only bona fide volunteers are exempt from this
  provision.
• Time in which the employee is waiting to be
  engaged is not required to be compensated, i.e.
  scheduled meal periods.
• Other waiting time is not required to be
  compensated.

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• Maintaining Exempt Status of Salaried Employees
• Salaried employees are not necessarily exempt
  employees.
• Employees receiving salary must be receiving the
  minimum salary basis to continue to qualify as
  exempt.
• Salaried employees typically cannot be docked
  pay in any week in which he or she performs any
  work. The exception to this rule is as it
  related to the Family Medical Leave Act (FMLA).

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• Fair Labor Standards Act (FLSA)
• The employer must pay a minimum wage per hour.
• Overtime must be paid after 40 hours/week at the
  rate of time and one-half of the employees basic
  rate.
• Equal Pay Act of 1963
• Prohibits pay differentials on the basis of sex.
• Davis-Bacon Act
• Requires federal construction contractors to pay
  mechanics and laborers prevailing wages and
  fringe benefits on federally funded construction
  projects.

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• Walsh-Healey Public Contracts Act
• Requires manufacturers and dealers supplying the
  federal government to pay the prevailing minimum
  wage for straight time hours, pay time and
  one-half employees basic rates for hours worked
  in excess of 4- hours in a workweek, not employ
  any person under the age of 16 years, not employ
  convict labor, maintain sanitary and
  non-hazardous working conditions, and post the
  laws requirements in a prominent place.

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• Service Contract Act
• Employer required to notify employees of
  statutory wage rights.
• Consumer Credit Protection Act
• Restricts garnishment withholding to the lesser
  of 25 of an employees weekly disposable income
  or the amount by which the employees weekly
  disposable earnings exceed 30 times the federal
  minimum hourly wage.

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Controlling Absence and Managing Leaves

• Attendance problems can be reduced by the
  following
• Establish and maintain standards
• Separate sick leave from absence standards
• Follow a progressive counseling policy for
  violations
• Use the hire/orientation period for new employees
• Publicize your interest in good attendance
• Strive for consistency

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• Attendance Issues Under the ADA
• Attendance policies must be applied neutrally and
  consistently to all employees.
• Regular attendance may be required if it is
  necessary to an essential job function.
• There is no requirement for employees to be
  allowed to work only when they are able.
• Absences due to a disability are treated
  differently than those that are not due to a
  disability.

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• Absences due to medical problems are case-by-case
  depending on the individuals disability.
  Considerations are given to migraine headaches,
  infertility, alcoholics, and drug addicts.
• Employers are not required to provide an
  opportunity for rehabilitation.
• Reasonable accommodation is required for
  employees who are disabled.

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• Attendance Issues Under the FMLA
• Intermittent or reduced work schedule leave may
  be part of FMLA.
• Chronic absenteeism may be designated as FMLA
  leave if a long-term medical condition is causing
  such absences.
• Employees have a responsibility to notify their
  supervisors of a foreseeable need for FMLA leave.
• Leave may be delayed by 30 days if reasonable
  notice was not provided to the employer and the
  leave was foreseeable.

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• Employers have a right to require medical
  certifications to support FMLA and returns to
  work.
• FMLA does not count against an employee as a part
  of the absentee policy.
• Childbirth, adoption, and foster care leave may
  be negotiated with the employee under FMLA.

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• Returning the Injured Employee to Work
• Light duty work may be required when a worker is
  re-employed.
• Reasonable accommodation may be an alternative to
  light duty.
• Implementing a light duty program can be an
  effective way to transition employees back into
  the job.

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• Holding Open the Job
• The decision on whether or not to hold a job open
  depends on economics and compliance with company
  policy.
• Considerations include
• Duration of the leave
• The nature of the job
• The availability of someone to fill the position

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Performance Appraisals

• The Legal Context
• No state or federal law requires employee
  appraisals.

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• Implementation
• Performance appraisals should be based on
• Job analysis
• Specific and objective evaluation criteria
• Advance notice of job standards
• Evaluation by a higher level of management before
  given to the employee

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• The best appraisal discussions are
• Descriptive
• Solution-Oriented
• Empathic
• Equal
• Provisional
• Cause-Oriented

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• Pitfalls of Negligent Performance Appraisals
• Appraisal does not adequately identify an
  employees shortcomings
• Poor performance appraisal costs an employee
  their job based on false negative or inaccurate
  information

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• The Consequences of Charity
• Charitable appraisals result from lack of
  supervisory self-discipline.
• The problem may go away by itself.
• There is no assurance that a replacement employee
  will be any better.
• Some supervisors are powerless to make
  replacements.

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• Advantages of Being Candid
• Supports successful defense of a possible future
  negative personnel decision.
• Helps to maximize long-term productivity of the
  organization as a whole.
• Has a morale enhancing effect on the entire work
  force.

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• Documentation
• Follow important personnel actions with
  documentation promptly.
• Ignore minor issues and focus on important
  incidents and behaviors which reflect
  significantly on employee job performance and
  conduct.
• Focus on job-related standards and behaviors.
• Avoid using pre-printed forms on which to record
  documentation.

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• Get the employees side of the story on record,
  preferably on the documentation itself.
• Avoid the risk that documentation will create the
  impression of retaliation.
• Take action to bridge past warnings.

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Employee Discipline

• Progressive Employee Discipline
• Level I The Oral Warning
• Level II The Written Warning
• Address the employee
• Write professionally
• State the problem or violation
• State the employment rule, policy or practice
  regarding the situation

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• State how the action of the employee is hurting
  business operations
• Refer to previous warnings about other
  performance problems
• Set forth a corrective action plan to remedy the
  deficient performance
• Include consequences for failure to improve.

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• There is no criteria on how many warnings must be
  allowed before an employee can be discharged.
• Considerations include
• The seriousness of the matter.
• Interval since prior warning.
• Company practice in similar situations with other
  employees.
• The employees length of service.
• The employees overall record.
• Compelling need for individual consideration.
• Unfortunate timing which might cast doubt on the
  employers motives.

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• Level III Probation/Suspension
• Investigative suspension allows you to remove the
  employee from the workplace for a given time to
  investigate the circumstances surrounding a given
  incident.
• Disciplinary suspension allows removal of the
  employee from the workplace as a punishment for a
  given action or behavior.
• Decision-making suspension allows you to give the
  employee a short time off (with pay) to consider
  his or her behavior and decide if the employee
  wants to meet your standards to keep his or her
  job.

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• Probation is a specified time allowed for the
  employee to demonstrate improved performance.

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• Level IV Final Warning and Termination
• Under no circumstances should an employee be
  fired on the spot.
• Suspend the employee, meet with your manager,
  gather documentation and plan a time for
  dismissal.

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• Final Thoughts on Discipline
• Dont keep secrets about performance.
• Dont institute progressive discipline without
  getting backing from your manager.
• Refrain in write documentation from anything
  other than facts and comments on observed
  behavior.
• Be sure to investigate an employees claims of
  mitigating circumstances.
• Check to see how similar terminations have been
  handled in the past.

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Avoiding Wrongful Termination

• Think Before You Act
• Do not act on impulse!
• Some Basic Legal Concepts
• The Reasonable Person doctrine implies that a
  supervisor has a sound business reason for the
  action taken.
• Past practice supersedes current policy, so
  follow established policies that are in place to
  help guard your position.
• Follow antidiscrimination law. Consider if your
  action has an adverse effect on a member of a
  protected class or category, is held to a neutral
  standard based on legitimate business necessity,
  and whether or not you have offered reasonable
  accommodation.

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• Treat cases alike, but dont treat everyone
  identically.
• Remember, voluntary resignation does not exempt
  an employer from a potential lawsuit.
• Avoid defamation when explaining to remaining
  staff why an employee has been discharged.
• Lawful termination begins long before the actual
  event.

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• In general
• Inform employees of company policies when they
  are hired
• Establish clear and written behavior standards
• Use an honest and informative performance
  evaluation system

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• When problems occur
• Investigate the facts before you act
• Use a progressive disciplinary system
• Document at each step of the disciplinary process
• Be consistent

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• As you consider termination
• Review the employees personnel file
• Consider transferring or reassigning the employee
  to an alternative position as opposed to
  terminating
• Termination decisions should be approved by at
  least two managers
• Review all company handbooks, policies and other
  documents that address handling terminations

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• When you decide to terminate
• Do not terminate employees based on false pretext
• Involve human resources and possibly your
  employment attorney at the earliest opportunity
• Make the termination process efficient and
  confidential
• Conduct discharge interviews and exit procedures
  in a sensitive, humane, and considerate manner
• Conduct exit interviews upon all resignations or
  discharges
• Consider offering employees outplacement services
  to ease the blow of termination

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• How to Fire an Employee
• Preliminary
• Cool down
• Take care of administrative details
• Outline beforehand critical points to cover
  during the discharge interview
• Use a private place other than your officeso you
  can leave

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• The Discharge Interview (10-15 minutes)
• Get directly to the point
• State reasons for termination
• Dont encourage employee hopes that might change
  your decision
• Dont suggest self-improvement
• Accept and hear the employees feelings, but
  stick to your guns
• Re-direct conversation to the future
• Close quickly

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• Document the interview
• Inform all associates that have a business
  need-to-know
• Arrange an exit interview with a third party
• Close all personnel business in a timely manner.

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Managers Pre-Dismissal Checklist
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Questions and Answers
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References

• Council on Education in Management. (1995)
  Personnel Law for Supervisors. Borgman
  Associates.