The Dos and Donts of Unemployment Benefit Claims April 10, 2015 - - PowerPoint PPT Presentation

The Do’s and Don’ts of Unemployment Benefit Claims

April 10, 2015 Paul Holscher Phone: 919-841-3556 Email: paul.holscher@jacksonlewis.com

NCCUPA-HR Spring Development Workshop

Henry Ross (“HR”), the HR Director for ABC University, is busy at her desk trying to complete a stack of yearly performance evaluations. HR decides to take a break and check her ever- growing collection of e-mails that is piling up. One

• f HR’s emails is from Sam, a Supervisor at ABC.

Sam’s job title is Director of Admissions. He was recently promoted to the position. Johnny Dollar, the Associate Director of Admissions, was the only other candidate that applied for the position. Despite the fact that Sam was the most qualified candidate, Johnny has made it known that he is not happy about ABC’s decision to promote Sam instead

• f him.

In fact, HR had recently told Sam to issue Johnny a Final Written Warning for insubordination. Johnny’s insubordination included failing to respond to Sam’s attempts to communicate and making inappropriate comments, among other things. HR looked back at Sam’s email and noticed that it was titled “Johnny Dollar Situation - URGENT!” HR begin to read…

Supervisor Sam’s Email to HR

Hi HR: I just got out of a meeting with Johnny. I had set up the meeting to talk about my expectations as his new supervisor. While I was talking Johnny interrupted me and yelled “I am not going to work for you.” I replied: “Johnny, Johnny Dollar- there ain’t no need to holler!”

Supervisor Sam’s Email to HR

I told Johnny that I was his boss and if he wasn’t going to work with me then I would be forced to talk to HR about it. Johnny then said: “That is fine I was going to quit anyway… By the way Sam, have you ever heard that song- ‘TAKE THIS JOB AND SHOVE IT, I DON’T WORK HERE ANYMORE’?!”

Supervisor Sam’s Email to HR

I then told Johnny that I hate country music and that I was very, very sad to hear that he wanted to quit… This situation has gone on long enough and Johnny needs to be terminated. His recent behavior is unacceptable and should not be

• tolerated. I’m going to come by your office in

a few minutes to talk about “next steps.” Sam

HR’s Conference with Supervisor Sam

HR had just finished reading Sam’s email when Sam walked into her office. HR: “Johnny’s behavior is ridiculous, especially given the fact that you recently issued him a Final Written Warning.”

HR’s Conference with Supervisor Sam

Sam: “HR, I recall you telling me to issue Johnny a Final Written Warning. I met with him last week and talked about it, but didn’t give him any document... Regardless, Johnny’s behavior hasn’t changed. HR: “Well, sounds like even if you had documented the Final Written Warning it would not have done any good. I agree, we need to terminate Johnny. Can you set up a meeting later this afternoon?” Sam: “Sure thing, HR- I’d be HAPPY to...”

HR’s Termination Meeting with Johnny Dollar

Later that day HR and Sam met with Johnny Dollar in ABC’s conference room. HR: “Johnny, I’m going to get straight to the point. Your recent workplace behavior towards Sam including, but not limited to, your behavior this morning is unacceptable. As a result, ABC is going to…”

HR’s Termination Meeting with Johnny Dollar

Johnny interrupted HR -- he was clearly upset... Johnny: “This is no way for ABC to treat an employee and proves that Sam should not have been promoted over me… Regardless, I told Sam earlier today that I was

• quitting. I have a letter of resignation that I’ve

prepared… And by the way I’ve already talked to an attorney, who you’ll be hearing from…” Johnny then walked out of the conference room….

Request for Separation Information

Several days later HR receives a NCUI 500AB: Request for Separation Information from Employer from the Division of Employment Security (“DES”) indicating that Johnny had applied for unemployment benefits. 1. How long does ABC have to respond to the NCUI 500AB: Request for Separation Information from Employer?

1. How long does ABC have to respond to the NCUI 500AB: Request for Separation Information from Employer ? DES sends a NCUI 500AB to employers when an employee files for unemployment insurance benefits. NC employers are required to provide a “timely” response to the NCUI 500AB. A response is “timely” if it is filed with DES within 14 days after the date DES issues the request.*

*See, “Guidelines for Preparing An Adequate and Timely Response to the NCUI 500AB: Request for Separation Information from Employer,” available at: http://www.ncesc1.com/HB4/EMPLOYER_memo9.11.13_M .pdf.

Request for Separation Information

NCUI 500AB Late responses to the NCUI 500AB will not be considered in the Initial Adjudication phase, but will have appeal

• rights. In addition, no amendments will be

allowed to the NCUI 500AB after the expiration of the 14-day period.

Request for Separation Information

Request for Separation Information

In addition to being “timely” NC employers are required to provide an “adequate” response to the NCUI 500AB: Request for Separation Information from Employer. 2. What is an “adequate” response to the NCUI 500AB?

Request for Separation Information

2. What is an “adequate” response to the NCUI 500AB? DES has indicated that an “adequate” response must include sufficient facts to enable DES to make a correct determination for unemployment benefits under the law without having to contact the employer to obtain any additional information.*

*See, “Guidelines for Preparing An Adequate and Timely Response to the NCUI 500AB: Request for Separation Information from Employer,” available at: http://www.ncesc1.com/HB4/EMPLOYER_memo9.11.13_M .pdf.

Request for Separation Information

2. What is an “adequate” response to the NCUI 500AB? Quit: (1) a copy of any resignation letter and (2) the specific reason(s) for the resignation. Termination: (1) reason(s) for the separation, (2) copies of policies, handbooks, etc., signed by the employee pertaining to the termination, (3) copies

• f any warnings/ termination documents, and (4)

detailed information about the circumstances leading up to the termination.

Request for Separation Information

3. What else does an employer have to include in the NCUI 500AB submission? The employer must also include: 1. The claimant’s pay rate; 2. The gross amount of vacation, severance and/or sick pay; 3. The claimant’s customary work days and work hours; and 4. The beginning and ending dates covered by any separation payments.

Request for Separation Information

Assume that ABC doesn’t respond to the NCUI 500AB: Request for Separation Information from Employer. Also, assume that ABC has a pattern of failing to respond to the NCUI 500ABs that it receives. 4. What does DES define as a “pattern” of failing to respond and what are the consequences for ABC’s failures to respond to the NCUI 500ABs?

Request for Separation Information

4. What does DES define as a “pattern” of failing to respond and what are the consequences for ABC’s failures to respond to the NCUI 500ABs? A “pattern” occurs if the employer fails to adequately/ timely respond to 2 or more NCUI 500ABs or equal to or greater than 2% of the total requests sent to the employer during the prior year, WHICHEVER IS LESS. Failing to respond to the NCUI 500ABs can lead to the employer being penalized by not being able to have its account relieved

• f

charges for benefits that are erroneously paid.

See, N.C. Gen. Stat. §96-11.4.

Assume that HR timely files the NCUI 500AB with DES. A few weeks later HR is shocked when she receives an Initial Adjudication stating that Johnny has been declared eligible for unemployment benefits. 5. What is the deadline for HR to appeal the Initial Adjudicator’s finding that Johnny is eligible for unemployment benefits?

Deadline to Appeal Initial Adjudication

Deadline to Appeal Initial Adjudication

5. Deadline for HR to appeal? 30 days

N.C. Gen. Stat. Sec. 96-15(b)(2): “The conclusion of the adjudicator shall be deemed the final decision of the Division unless within 30 days after the… mailing of the conclusion… a written appeal is filed...” Determination By Adjudicator: states- “Appeal Rights Expire: [DATE]”

Deadline to Appeal Initial Adjudication

5. Deadline for HR to appeal? 30 days Timeliness

DES must receive the appeal by the 30-day deadline. The “mailbox rule” no longer applies. There are only 2 exceptions for “late” appeals: (1) Excusable neglect (2) Circumstances beyond the employer’s control

Larry Litigator

A few days after HR receives the Initial Adjudication indicating that Johnny is eligible for unemployment benefits his phone rings... On the phone is Larry Litigator who states that he is representing Johnny Dollar…

Larry informs HR that Supervisor Sam was untruthful in his application for the Admissions Director position, that Johnny Dollar was more qualified, and that Johnny should have been promoted. However, Larry Litigator says to Johnny that he won’t file a lawsuit against ABC and that Johnny will “let bygones be bygones” if ABC agrees not to appeal the Initial Adjudication awarding Johnny unemployment benefits.

Larry Litigator

• 6. Thoughts regarding Larry Litigator’s proposal?

Larry Litigator

Deadline to Appeal Initial Adjudication

• 6. Thoughts regarding Larry Litigator’s proposal?

Legal: ABC can enter into a Settlement Agreement whereby it agrees to withdrawal its appeal of the award

• f

Johnny’s unemployment benefits in exchange for a general release. Not Legal: ABC cannot require Johnny to waive his rights to file for unemployment as part of any Settlement Agreement.

Assume that HR decides to appeal the Initial Adjudication. HR files ABC’s appeal and receives a Notice of Hearing By Telephone… 7. Can HR request an in-person hearing?

In-Person Hearing

7. Can HR request an in-person hearing? YES.

N.C. Gen. Stat. Section 96-15(c): statutory right for an employer to request an in-person hearing- “The hearings may be conducted by conference telephone call or other similar means provided that if any party files with the Division prior written objection to the telephone procedure, that party will be afforded an opportunity for an in-person hearing…”.

In-Person Hearing

8. Why should ABC request an in-person hearing?

In-Person Hearing

8. Why should ABC request an in-person hearing?

• An unemployment benefits hearing is generally

easier to conduct in-person, as opposed to over the phone.

• Credibility is better judged in-person.
• Exhibits do not have to be disclosed in advance

when an in-person hearing is held (cuts both ways).

In-Person Hearing

9. Can HR obtain more than an hour for the hearing for the in-person hearing for the appeal

• f

Johnny’s claim for unemployment benefits?

Length of Appeals Hearing

9. Can HR obtain more than an hour for the hearing for the appeal

• f

Johnny’s unemployment benefit claim? YES.

• Generally speaking, DES Appeals Referees assign
• ne (1) hour for each hearing.

BUT, if advance notice is given, additional time can be allotted for the hearing.

Length of Appeals Hearing

HR files an appeal of the Initial Adjudication awarding Johnny unemployment benefits and also requests that an in-person take place. 10. Where will the in-person hearing take place?

ABC’s Appeals Hearing

10. Where will the in-person hearing take place? The in-person hearing will most likely take place at the DES office that is closest to the residence of the non-appealing party (i.e. Johnny).

ABC’s Appeals Hearing

Assume HR timely appeals the Initial Adjudication and requests an in-person hearing. Tom is a former employee of ABC that witnessed some of Johnny’s inappropriate behavior. As a result, HR thinks that Tom will be a very favorable witness for ABC. HR has contacted Tom about attending the unemployment benefits hearing, but Tom’s response was “I have better things to do with my time…” 11. Any thoughts

• n

how HR could

• btain

testimony from Tom?

ABC’s Appeals Hearing

11. Any thoughts

• n

how HR could

• btain

testimony from Tom? ABC can contact the Appeals Referee that is assigned to the appeal and request that a subpoena be issued for Tom to appear at the hearing.

ABC’s Appeals Hearing

Assume HR timely appeals the Initial Adjudication and requests an in-person hearing. However, HR does not have a copy of Johnny’s resignation letter. 12. Any thoughts on how HR could obtain a copy

• f Johnny’s resignation letter for the hearing?

ABC’s Appeals Hearing

12. Any thoughts on how HR could obtain a copy

• f Johnny’s resignation letter for the hearing?

ABC can contact the Appeals Referee assigned to the case and request that a subpoena be issued to obtain any documents that Johnny has related to his separation of employment. Note: Conduct subsequent to separation generally is not admissible.

ABC’s Appeals Hearing

13. At the appeals hearing should ABC argue that Johnny quit or that he was terminated?

ABC’s Appeals Hearing

Quit – Claimant’s Burden of Proof A claimant that “quits” is presumed ineligible for unemployment benefits and the claimant has the burden to prove that he/she “left work with good cause attributable to the employer.” See, N.C. Gen. Stat. § 96-14(1). Termination – Employer’s Burden of Proof If a claimant is terminated, he/she is presumed eligible for unemployment benefits and the employer has the burden to prove that the claimant’s term. was due to “misconduct connected with the work.” See, N.C. Gen. Stat. 96-14(6). *Appeals Referee’s 1st Question: “Is this a term. or a quit?”

Quit v. Termination: Burden of Proof

14. What does “left work with good cause attributable to the employer” mean?

“Good Cause Attributable to the Employer”

14. What does “left work with good cause attributable to the employer” mean? “Good cause” has been interpreted to mean a reason which would be deemed by reasonable men and women valid and not indicative

• f

an unwillingness to work. Sellers v. National Spinning

• Co. Inc., 64 N.C. App. 567, 307 S.E.2d 774 (1983),

disc rev. denied, 310 N.C. 153, 311 S.E.2d 293 (1984).

“Good Cause Attributable to the Employer”

14. What does “left work with good cause attributable to the employer” mean? Presumed “good cause” for quitting* 1. Reduction of hours: by more than 50% as part of a unilateral and permanent reduction in hours; 2. Reduction in rate of pay: more than 15%, employer can rebut by showing reduction is temporary or due to employee’s malfeasance; 3. Domestic violence: continued employment would jeopardize safety; & 4. Relocation of military spouse *See, N.C. Gen. Stat. §§ 96-14.5(a)-(b); 96-14.8

Quit – Burden of Proof

Assume that Johnny’s separation is considered a termination. At the beginning

• f

the hearing the Appeals Referee states: “HR, you are representing the employer- please call your first witness…” 15. What must HR do to win its appeal and have Johnny declared ineligible for unemployment benefits?”

Termination - Misconduct

15.

HR must show “competent evidence” that Johnny was termed for “misconduct.” See, N.C. Gen. Stat. 96-14(6)

Misconduct 1. Conduct evincing a willful or wanton disregard of the employer’s interest as is found in deliberate violation or disregard of standards of behavior that the employer [1] has the right to expect of an employee or [2] has explained orally or in writing to an employee 2. Conduct evincing carelessness or negligence of such degree or recurrence as to manifest an intentional and substantial disregard of the employer's interests

• r
• f

the employee's duties and

• bligations

to the employer.

Termination - Misconduct

Prima Facie Evidence of Misconduct N.C. Gen. Stat. § 96-14.6(c)

(1) Violation of written alcohol/ illegal drug policy (2) Reporting to work significantly impaired by alcohol or illegal drugs (3) Consumption of alcohol or illegal drugs on employer’s premises (4) Conviction for manufacturing/ selling/ distributing a controlled substance if offense is related/ connected to work or is in violation of a reasonable work rule/ policy (5) Termination after arrest or conviction for an offense involving violence, sex crimes, or illegal drugs if related/ connected to work or is in violation of a reasonable work rule/ policy (6) Any physical violence related to employee’s work

Termination - Misconduct

Prima Facie Evidence of Misconduct N.C. Gen. Stat. § 96-14.6(c) (7) Inappropriate comments or behavior relating to any federally-protected characteristic which creates a hostile work environment (8) Theft in connection with employment (9) Forging or falsifying any document or data related to employment, including a previously submitted application for employment (10) Violation of an employer’s written absenteeism policy (11) Refusal to perform reasonably assigned work tasks or failure to adequately perform employment duties as evidenced by no fewer than 3 written reprimands in the 12 months immediately preceding the employee’s termination

Termination - Misconduct

Assume that HR calls herself as ABC’s first witness at the in-person hearing… HR hands the Appeals Referee and Johnny a copy of Employer’s Exhibit

• No. 1, which is ABC’s Workplace Conduct Policy.

HR: “Mr. Appeals Referee I am handing you and Johnny a copy of ABC’s Workplace Conduct Policy. As you can clearly see, ABC’s Workplace Conduct Policy specifically prohibits insubordination.”

Hearing Testimony & Exhibits

HR then hands out a copy of the Acknowledgement Sheet that Johnny signed showing that he had received and reviewed ABC’s Employee Handbook… HR continues: “More importantly, Johnny knew of the Workplace Conduct Policy as evidenced by this executed acknowledgement sheet. As part of ABC’s

• nboarding process Johnny signed and gave the

acknowledgement to Sam – Johnny’s Supervisor –

• n March 15, 2015...”

16. Thoughts regarding HR’s testimony?

Hearing Testimony & Exhibits

16. Thoughts regarding HR’s testimony?

• HR has not put forth “competent evidence” that Johnny

received a copy of ABC’s Workplace Conduct Policy.

• HR has no first-hand “personal knowledge” regarding

Johnny’s execution of the Acknowledgement Sheet.

• HR should have brought Sam to the appeals hearing to

testify regarding the Acknowledgement Sheet because Sam witnessed Johnny execute it.

• The Acknowledgement sheet needs to be “authenticated.”
• Once

authenticated, HR should request that the Acknowledgement be “moved into evidence.”

Hearing Testimony & Exhibits

Questions For Witness With Personal Knowledge

• I am handing you a document that is marked as Employer’s

Exhibit No. 1. Please take a minute to review the document...

• Are you familiar with Employer’s Exhibit No. 1?
• What is it?
• Is Employer’s Exhibit No. 1 dated?
• What is the date?
• Is Employer’s Exhibit No. 1 signed?
• Who signed it?
• When did they sign it?

*Conclude Authentication of the Exhibit and Move It Into Evidence: “Mr. Appeals Referee, I now request that Employer’s Exhibit No. 1 be moved into evidence for its evidentiary value.”

Authenticating Exhibits

17. Assume that HR decides to bring Supervisor Sam to the in-person hearing and calls Sam as her first witness. What exhibits should HR introduce through Sam?

Hearing - Exhibits

17. What exhibits should HR introduce through Sam? Exhibits 1. ABC’s Employee Handbook / Workplace Conduct Policy 2. Johnny’s Executed Acknowledgment of his receipt of ABC’s Employee Handbook 3. Johnny’s Written Warnings (if any) 4. Documents related to Johnny’s termination (if any)

Hearing - Exhibits

Johnny Dollar is finally finished testifying and, as a result, the hearing before the Appeals Referee has almost ended. The Appeals Referee turns to HR... Appeals Referee: “Does the employer wish to make any statements as part of its closing?” 18. What strategy should HR use as part of her closing?

Hearing Strategy

18. What strategy should HR use as part of her closing? “Totality of the Circumstances” Test – DES Precedent Decision No. 4 “The Commission has consistently held that if it is alleged that a claimant was discharged from his job for a series of incidents, the ‘totality of the circumstances’ test as opposed to the ‘last incident’ test will be utilized in determining whether he was discharged for misconduct connected with work…”

“Totality of the Circumstances” Test

“Totality of the Circumstances” Test – DES Precedent Decision No. 4 “‘The totality of the circumstances’ test does not require that the last incident occurring prior to the discharge be sufficient, in and of itself, to bring about the discharge. Instead, the Commission will look at all the incidents as a whole in determining whether the claimant was guilty of misconduct. The employer, however, still must show that the last incident precipitating the decision to discharge the claimant contained some element of misconduct…”

“Totality of the Circumstances” Test

“Last Incident” Test – DES Precedent Decision No. 4 “Conversely, the ‘last incident’ test requires a showing that the final act or failure to act on the part of the claimant prior to the discharge was sufficient, in and of itself, to cause claimant’s discharge. This test is normally used when it is alleged that the claimant was discharged for only one reason.”

“Last Incident” Test

• 19. Unemployment Hearings:

Best Practices

1. In-person hearing 2. Prepare! Prepare! Prepare!

• Review claimant’s personnel file
• Review applicable policies
• Review communications related to separation
• Review Employment Security Law (Chapter 96 of

the N.C. General Statutes)

• Review DES Precedent Decisions
• Prepare witnesses for direct & cross examination

3. Be organized: exhibits (with 3 copies)

• 19. Unemployment Hearings:

Best Practices

4. Persuasive Evidence & Arguments:

• a. Prepare an Effective Cross-Examination of

Claimant

• who? what? when? why? how?
• challenge hearsay evidence as “not competent

evidence”

• challenge testimony via ER’s witnesses’ testimony
• b. Effective Examination of Other Witnesses
• testimony is under oath
• prepare in advance
• should testify to “firsthand” knowledge
• include decision-makers/ witnesses to conduct

• 4. Persuasive Evidence/ Arguments Cont’d:
• c. Documents
• at least 3 copies of each
• authenticate
• move into evidence
• d. Temperament
• be cool, calm and collected
• e. Closing
• keep it concise
• summarize employer’s “competent evidence”

(emphasize non-hearsay evidence)

• summarize what the Findings of Fact should be
• summarize what Conclusion of Law should be.
• 19. Unemployment Hearings:

Best Practices

5 Final Considerations For Unemployment Hearings

• 1. Hearing is likely the ONLY chance to offer evidence
• 2. Confidentiality of hearings/ evidence
• 3. “Big picture”
• business “costs of defending”
• potential implications on Administrative Claim (EEOC

Charge, NCDOL Charge) or lawsuit

• 4. N.C. Gen. Stat. § 96-15.1: Protection of witnesses from

discharge, demotion or intimidation- “No person may discharge, demote, or threaten any person because that person has testified or has been summoned to testify in any proceeding under the Employment Security Act.”

• 5. Drug Test Cases: competent evidence via expert
• 19. Unemployment Hearings:

Best Practices

Assume ABC loses its appeal and Johnny is declared eligible by the Appeals Referee for unemployment benefits. 20. Can ABC appeal the Appeals Referee’s decision?

Potential Appeal of Appeals Referee’s Decision?

20. Can ABC appeal the Appeals Referee’s decision? Yes- ABC can appeal the decision via a letter to DES. No special form is necessary to file a written appeal. The employer should state its desire to appeal and its specific disagreement with the decision.

Appeal of Appeals Referee’s Decision

21. If ABC decides to appeal the Appeals Referee’s decision, what should it immediately do in addition to filing the appeal?

Appeal of Appeals Referee’s Decision

21. If ABC decides to appeal the Appeals Referee’s decision, what should it immediately do in addition to filing the appeal? ABC should request a copy

• f

the hearing transcript and request that its appeal deadline be extended until after it receives the transcript. NOTE: Generally, ABC’s appeal will be limited to: (1) its appeal document and (2) the “record on appeal” (transcript of hearing & documents presented at the hearing)

Appeal of Appeals Referee’s Decision

Higher Authority Review

Higher Authority Review (“HAR”) will consist of a review by DES of the “record on appeal.” ABC can request to appear in-person to make oral argument. Oral arguments are not an

• pportunity to present testimony or other evidence. Instead,

they are an opportunity for the parties to summarize their legal arguments. Each party usually gets 15 minutes to make arguments. The HAR will issue a Higher Authority Decision (“HAD”) HAD – Potential Results 1. Hold, modify or set aside the decision; 2. Order that another evidentiary hearing take place; 3. Deny a request for another evidentiary hearing; and/or 4. Deny/ dismiss the appeal (untimely, etc.).

Additional Appeal?

22. Assume that ABC appeals and is not happy with the HAD. Can it appeal again?

Additional Appeal?

22. Assume that ABC appeals and is not happy with HAD. Can it appeal again? Yes. HAD Appeal Options 1. Request for Reconsideration: made to DES’ Legal Services Section, must be received on or before the 10th day after the HAD is mailed. 2. Petition for Judicial Review: this is a request for review by Superior Court, must be filed with the Office of the Clerk of Superior Court in the county where the employer’s place of business is, must be filed within 30 days from the mailing date on the HAD

Assume that Johnny is declared eligible for unemployment benefits. 23. What is Johnny’s maximum weekly benefit amount?

Maximum Weekly Benefit Amount

71

23. Johnny’s maximum weekly benefit amount?

• Weekly Benefit Amount: 66.67% of weekly wage,

capped at $350 per week (HB 4- reduced WBA 35% - from $535 to $350 per week, so WBA reduced for any worker with more than $27,300 in yearly income)

Maximum Weekly Benefit Amount

72

24. If Johnny is declared eligible for unemployment benefits, how many weeks of benefits will he receive?

Length of Benefits

N.C.’s February 2015 seasonally adjusted unemployment rate for was 5.3% (same as Jan. 2015). Johnny will receive between 5 and 12 weeks of unemployment benefits ($1,750.00

• $4,200.00).

Unemployment Rate Minimum Maximum 5.5% or less 5 12 5.6% - 6.0% 6 13 6.1% - 6.5% 7 14 6.6% - 7.0% 8 15 7.1% - 7.5% 9 16 7.6% - 8.0% 10 17 8.1% - 8.5% 11 18 8.6% - 9.0% 12 19 Higher than 9.0% 13 20

Length of Benefits

74

25. What can ABC do to potentially reduce its unemployment liability?

Reducing Liability

75

25. What can ABC do to potentially reduce its unemployment liability?

• Decrease

the number

• f

employees declared eligible for unemployment benefits.

Reducing Liability

76

EMPLOYER

Management Management HR HR Employee Employee Employee Employee

Quits & leaves without notice Quits & stays Stays, files EEOC Charge Stays but has negative attitude and contributes to low morale Quits & leaves, but gives notice Stays, files lawsuit Stays, files Wage & Hour Complaint with NCDOL Wins lawsuit and is reinstated Quite, files REDA Complaint With NCDOL Engages in workplace violence Quits, files class action lawsuit Quits, files Lawsuit Stays, makes OSHA complaint

Reducing Liability: Management

Quits, files claim for unemployment benefits

77

• Take “reasonable care” to prevent harassment/

discrimination:

• a. Policies: up-to-date policies and Employee Handbook
• b. Training: management, rank-and-file employees
• c. Knowledgeable: aware of changes in workplace law, regs.
• Document Decisions: non-discriminatory, non-retaliatory &

well-documented decisions including: (a) hires, promotions, etc.; (b) performance reviews (accurate and timely); (c) employee discipline (consistent).

• Manage risk: recognize, manage and document risk
• a. Employee complaints/ concerns: “eyes & ears” of

employer

• b. Respond: investigate, take prompt remedial action

(discipline, change policies, etc.).

Reducing Liability

78

* What is HR and Management’s most important goal?

Extra Credit

79

* What is HR and Management’s most important goal?

• To lead by example by displaying a

positive attitude.

• Attitude is the ONLY thing in life

that we can control.

Extra Credit: Attitude

80

Extra Credit: Attitude

“Attitude, to me, is more important than facts. It is more important than the past, than education, than money, than circumstances, than failures, than successes, than what

• ther people think or say or do… It will make or break a

company… a family… The remarkable thing is we have a choice every day regarding the attitude we will embrace... We cannot change our past… We cannot change the inevitable. The

• nly thing we can do is play on the one string we have,

and that is our attitude... I am convinced that life is 10% what happens to me and 90% of how I react to it.”

Charles Swindoll

81

Extra Credit: Attitude

5 Traits of Positive & Mentally Tough People 1. Don’t do the same thing over & over & expect different results: this is the definition of “insanity.” Positive people are willing to change their behavior in order to change results. 2. Don’t expect immediate results: positive people are in it “for the long haul,” know that success requires significant time and energy, and are willing to work hard for it. 3. Learn from their mistakes: positive people learn from their mistakes, take ownership, and move on. 4. Don’t waste energy on things they can’t control: positive people realize many problems wouldn’t exist if we didn’t invent them and don’t waste time complaining (e.g. traffic/ lost luggage). 5. Don’t shy away from change: positive and mentally tough people embrace change & fear complacency.