Kansas Employment Law Blog

In the world of employee management, things unfortunately don’t always go as planned. From discipline meetings and performance evaluations to termination meetings, managers often have to share difficult news with employees. Finding an honest, respectful way to do so can be the difference between an employee on the path to improvement and one who throws a scene on his way out the door and drives straight to the EEOC to file a charge of discrimination. While there are numerous strategies for how to best navigate these difficult conversations, read on for a few suggestions on keeping these meetings on track.

Performance Evaluations

Performance evaluations are one of an employer’s most valuable tools for communicating with employees. They provide a built-in opportunity to give clear direction to employees about what is going well and what isn’t.

The most important rule when it comes to evaluations is to tell the truth, even when it’s difficult. Unfortunately, our workplaces are not in Lake Wobegone, and not all our employees are above average. If you have a low-performing employee, it is only fair to the employee and the employer to be honest with the employee about that performance. If an employee is performing acceptably in one area but not meeting expectations in another, the evaluation should explain to the employee in clear, simple language both the successes Continue Reading...

Foulston Siefkin's HR Training Series is designed to benefit business owners, executives, and HR professionals with responsibility in their organization for the full range of issues arising from the employer-employee relationship. Presented by Foulston Siefkin attorneys at our offices in Kansas City, Topeka, and Wichita, each session will address issues that important and relevant to employers. All training sessions will be submitted for HRCI and SHRM credit.

The 2018-19 schedule is available below. For more information on the topics and HR Training Series, visit www.foulston.com/hrtraining. Click here to register now.

HR Half-Day Sessions

WICHITA

Back to the Basics: HR Topics from A-Z that Every HR Professional Should Know AUGUST 29, 2018
Not as Easy as One, Two, Three: How the FMLA, ADA, and Workers’ Compensation Interact with Employee Leave of Absence and Return to Work OCTOBER 30, 2018

KANSAS CITY

Back to the Basics: HR Topics from A-Z that Every HR Professional Should Know SEPTEMBER 11, 2018
Not as Easy as One, Two, Three: How the FMLA, ADA, and Workers’ Compensation Interact with Employee Leave of Absence and Return to Work NOVEMBER 6, 2018

HR Box Lunch Sessions

WICHITA

Box of Tricks or Pandora’s Box? How Outside Information Can Help or Hurt Employee Hiring and Retention JULY 24, 2018
Anatomy of a Complaint: From Charge to Lawsuit AUGUST 21, 2018
Just the Facts: Difficult Conversations, Discipline, and Performance Management SEPTEMBER 27, 2018
The Benefit of Staying Up Continue Reading...

You probably saw the video clips or at least heard about the fake sign language interpreter at Nelson Mandela’s memorial service. As President Obama and other dignitaries addressed the crowd, the interpreter, Thamsanqa Jantjie, stood on stage next to them and flapped his arms and hands around making meaningless gestures. “It was almost like he was doing baseball signs,” deaf actress Marlee Matlin said. “I was appalled.” Jantjie had faked his credentials and managed to get a security clearance pass, much to the embarrassment of South African officials. It was later discovered that he suffered from schizophrenia and had been accused of murder. While this was an extreme case, it is not uncommon for job applicants to lie about their credentials. Studies show that one-fourth to one-half of job seekers provide false information about their education, experience, or other background information to prospective employers. For steps you can take to detect and deal with workplace imposters, click on the following link to a prior post on this topic. (The Great Imposter (07/29/2011)) A little work on the front end can save you headaches and money in the long run.

With the arrival of April Fool's Day, baseball season is officially underway. I know for some of you with kids, baseball/softball season has been underway for quite some time.

I read an interesting blog posting yesterday talking about timeless leadership lessons from baseball. I thought I would pass along some of the more pertinent HR-related points here, although all of the nine items listed in the original posting are good tidbits to consider. Here are the HR-related points:

Measure everything important. Good decisions come from gathering and reviewing good data. Take advantage of your electronic information systems to track and analyze information related to employee performance. This is a key step to fielding a great team at your company.
Team versus superstar. Make sure your team is solid from the top to the bottom of your roster. Having great employees surrounded by mediocre employees isn't nearly as effective as having good employees across the board. Make sure to focus your efforts to develop talent across the board.
Team chemistry rules. A cohesive team is always better than a team fighting amongst itself. Sometimes you just have to make a move purely to fix the overall workplace chemistry. Ignore this issue at your own peril.

To read the full version of the article click here. It's a short read and makes some great points about leadership.

I spend a lot of time either coaching youth sports or hanging out watching youth sports. It is the nature of the beast when you have three kids at home. Those experiences remind me that managing kids is a lot like managing employees. The big difference is you hope employees are a bit more mature and responsible than kids. As most of you in HR can attest, that isn't necessarily true (as a coach I have seen young players be a lot more mature than their own parents).

Over the last several months there have been a number of times those parallels between sports teams and workplaces were very apparent. Without naming the guilty, here are a few stray observations about youth sports that carry over to the HR realm:

No matter how hard you try, you can't cure a personality defect. Individuals who are moody and grumpy (read: have bad attitudes) usually stay moody and grumpy. It seems the more you try to draw them out of that mindset the deeper they settle in. It's time for tough love. Instead of slipping into the cycle of coaxing better performance from this type of person, make it simple. Drop the attitude or find a new employer. In other words, just get rid of the cancer -- cut it out. If you don't it will spread to your other team members. Plus you will have a lot more time to focus on your other employees since you won't be wasting a bunch of time on Continue Reading...

You may be familiar with Benihana, the Japanese-cuisine restaurants that feature knife-wielding, joke-cracking chefs who prepare your food. In 2011 a group of former managers filed a class action, alleging that Benihana’s vacation policy violated California law by requiring employees to forfeit accrued, unused vacation time when their employment ends. This month Benihana agreed to pay $600,000 to settle the case.

Do you know that the Kansas Wage Payment Act similarly prohibits employers from imposing a forfeiture of earned but unused vacation time? But that does not necessarily mean employers are always obligated to let employees cash out their unused vacation time upon termination. Confused? You should be, as Kansas law on this issue is tricky. Read on and I’ll explain.

The KWPA provides that employers must pay all wages due, which includes vacation time and paid time off (PTO), provided the employee has met all the conditions required to be eligible for and earn that compensation. Kansas Department of Labor regulations prohibit employers from imposing a “condition subsequent” to an employee’s entitlement to compensation that results in a forfeiture or loss of earned wages. This is in contrast to a condition precedent, which is something that must happen before the agreement becomes effective.

Still confused? The key point to understand here Continue Reading...

In most cases, a discrimination claim arises following some sort of disciplinary process or performance counseling activity. In more limited cases, the external claim follows some concern raised internally with the employee being dissatisfied with the resolution reached during the internal process. In all of these situations, the employer should have conducted an internal investigation into the matter. The quality of the internal investigation will have a significant impact on the later external claim the employee files with the KHRC/EEOC.

In the case of employee misconduct, the internal investigation will provide the basis for the discipline that is ultimately issued in the matter. The documentation of the investigation will go a long way to supporting the employer's defense to a discrimination claim if the investigation was handled appropriately. The key to any investigation is to be thorough and fair as the facts and circumstances are evaluated. A good investigation includes interviews of any and all witnesses to the situation, even if the witness will provide information that is contradictory to the position the management team has taken. Trust me on this one -- it is much better to find out all the sordid details during the internal investigation than to be hit over the head with those bad facts months (or even years) after the fact during an external investigation.

If you have worked in HR or management for more than a few days you are sure to have heard several times by now to document and then document and then document. This old employment-law adage remains true today. Maintaining documentation of your employment decisions can be the difference between being able to successfully defend a discrimination claim and losing on that claim. The typical discrimination charge filed with the KHRC/EEOC covers factual events that range anywhere from three months old to several years old. If you are anything like me, remembering where I was at two years ago today is virtually impossible let alone what happened during a three-minute conversation with a co-worker. That's where documentation comes into play.

I want to expand a bit on that concept of documenting to add in the notion that what you are really after is good documentation. Any employment decision made should be supported with documentation reflecting that action. The documentation can be simple notes written by a supervisor or a full-scale form detailing actions taken and the reasons for the action. In most cases, the documentation will be an accurate and true reflection of the events being noted and will be given much more weight two years later than a supervisor or employee's recollection of the events. That's what makes good documentation so important -- it is not subject to revisionist memory since it was created at the time of the event.

One last note: the documentation maintained in an employee's personnel file should Continue Reading...

If an employer has a set of policies and practices in place, educating the employees and the management team is a critical link in reducing the likelihood of a discrimination claim. The training for employees will differ somewhat from the training provided to the management team.

With respect to employees, the new-hire orientation process should contain a general overview of company policies and rules. In addition, it is always a good practice to have the employees sign an acknowledgment that they were made aware of the policies and rules in place. Beyond a general new-hire-training process, it is also helpful to conduct periodic training sessions for employees focused on non-discrimination and anti-harassment policies, as well as any specific company rules that need additional emphasis. With respect to the anti-harassment and non-discrimination training, it is important to emphasize the internal process by which complaints under those policies can be made. This internal complaint process will be helpful in that it will encourage employees to keep complaints internal and may provide the employer with the ability to assert some affirmative defenses if the employees fail to follow a complaint process.

The management team should receive the same training as non-management employees, as well as additional training on topics including the FMLA, ADA, Title VII, and the FLSA. It is important for supervisory employees to understand the employer's basic obligations and practices with respect to these various statutes. These management employees are likely to be the first employer representative to encounter a concern implicating these statutes, so they need to understand the basics to ensure they properly respond to the employee. Another key part of the Continue Reading...

The last installment discussed a couple of important policies - EEO and anti-harassment - that all employers should have in their policy collection to help avoid discrimination claims. Beyond those two policies, employers should also have a wide-ranging variety of policies related to how employees should conduct themselves in the workplace. These various policies will cover all sorts of disciplinary and performance issues and will vary from employer to employer. While having the policies is helpful, the next key to avoiding discrimination claims is to ensure these wide-ranging policies are followed as written by the employer. If an employer policy addresses a situation, the actions taken by the employer should be consistent with the policy. And beyond being consistent with the policy, the actions taken should be consistent how the employer handled past instances of violations of the policy. An employer that deviates from the terms of its own policies or from its past practices may find it difficult to defend the employment action taken. You can be sure the employee filing the charge will claim the deviation is a result of the employee's protected classification as opposed to the employer's insistence the action was based upon the policy violation.

So remember, follow the policy as written and make sure any employment action taken is consistent with how violations have been handled in the past. A failure to do so will invite employee-discrimination claims.

As most of you know, any of your employees (or former employees) can file a discrimination charge with the EEOC or KHRC alleging your company discriminated against them on the basis of any (or several) protected classifications under the various statutes like the ADA or Title VII. When a charge is filed, the employer will almost always be required to respond to the agency and provide a variety of supporting materials and/or materials requested by the agency. These investigations also frequently involve the agency sending an investigator to your workplace to interview witnesses (managers and co-workers of the complaining party). This process can be time consuming for employers and serve as a distraction from the normal course of business for the employer. The best defense to a discrimination charge is to exercise good preventive medicine.

Over the next few weeks, check back for a series of posts highlighting some good preventive measures an employer can take to avoid a discrimination charge. And even if these measures don't prevent a charge, following some or all of them will make defending the charge a much easier task.

So let's get started.

The first line of defense revolves around employer policies. Every employer should implement EEO-related policies and procedures. The basic EEO policy should reinforce the employer's commitment to equal employment opportunity and to making employment-related decisions without considering protected classification information. In addition to an EEO policy, employers should also have a policy related to harassment issues. The anti-harassment policy should cover sexual harassment and other forms of harassment based on protected classifications. It is Continue Reading...

The thirst for revenge is among the strongest of human emotions. In fact, the innate human desire to “get even” has driven much of the history of the world. But acting on feelings of revenge can have dire consequences, not only in the world at large, but particularly in the world of employment law.

Most employment-protection laws contain anti-retaliation provisions. And courts are broadly interpreting and applying these provisions.

The U.S. Supreme Court has recognized and expanded the right to bring retaliation claims in a series of cases over the past several years. In January, the Court ruled that Title VII’s anti-retaliation provision covered an employee who was fired shortly after his fiancée, who worked for the same company, filed a sex discrimination claim. (Supreme Court Finds in Favor of Fired Fiance 01/25/2011)

In March, the Court held that the FLSA’s anti-retaliation provision, which uses the phrase “filed any complaint,” applies to an employee’s oral complaints.

These cases follow prior decisions in the last five years in which the Court ruled that:

· Title VII’s anti-retaliation clause, which refers to “opposition,” does not require active opposition, but encompasses involuntary participation, such as making statements during an employer’s internal investigation;

· Employees can bring retaliation claims under the ADEA;

· Employees can bring retaliation claims under Section 1981 of Chapter 42 of the Continue Reading...

Major League Baseball opens the 2011 season this week, and I have baseball on my mind. Which makes me think about the great baseball philosopher, Yogi Berra. Here are some of the most-memorable "Yogi-isms," and what human resources professionals and personnel managers can take away from these pearls of wisdom.

“You’ve got to be careful if you don’t know where you’re going ‘cause you might not get there.” Let’s face it, employment law is complicated. You need to understand the law, and get help from your lawyer when you don’t, to know where it is you want to go (unless you want to go to the courthouse).

“We’re lost, but we’re making good time.” Activity is not the same as progress. Once you know where you want to go, make a plan and set specific and measurable goals to get you there.

“It’s déjà vu all over again.” If you keep doing the same things you’ll keep getting the same results. Study best HR practices and take advantage of what others have already figured out. Join a professional organization, go to seminars, and talk to contemporaries at other companies. If you need help deciding how to deal with a dilemma or improve your policies and procedures, confer with an experienced employment lawyer or HR consultant—chances are they’ve seen it and done it all before.

“You can observe a lot by watching.” Effective managers and HR professionals know what’s going on in their workplace. So set aside Continue Reading...

After blogging about training earlier this week, I had an opportunity last night to watch what might have been one of the better training sessions I've seen in some time. To protect the innocent and hide the identity of all involved (other than me), I will only divulge that the training session was youth-sports-related. As a parent, I have done more than my share of coaching kids' sports. I have also had the opportunity to see plenty of other youth coaches at work. The topic being taught last night was how to hit a softball. I've seen dozens of other coaches present the same general information to groups of kids. What differed between the session last night and all the others was the approach used for the teaching. Here are the key things I saw that might be helpful in providing training to others:

Break down the task being taught into each of its core component steps. Isolate each one and teach it thoroughly before moving on to the next step in the process.
Stop along the way to explain what you are telling the audience. If you use terminology, make sure they understand those terms and how they apply to your topic.
Engage your group and obtain feedback. This will allow you to evaluate whether you are effectively conveying your points to your audience.
Once you have isolated and taught the individualized steps, roll it all up into one package and present Continue Reading...

Every employer approaches the issue of training from a slightly different perspective; however, all employers share the same end goal. The goal is to bring in new employees and provide them with the required skills to perform the tasks the employer needs completed. Sometimes the goal is to improve the skills of existing employees to allow them to be more efficient or to perform new tasks. At the end of the day, the approaches utilized by the individual providing the training will dramatically impact the overall effectiveness of the training. Here are a few thoughts that might make your training programs more valuable:

Make sure your trainer understands the audience. The content and/or delivery of the training should be tailored to fit the attendees' knowledge level and ability to learn.
Cheaper isn't always better. It may be more cost-efficient to deliver training to the desktop via computer-based tools. The real question is whether the target audience actually absorbs the training delivered. No amount of cost reduction in the training delivery method is worth sacrificing the actual learning objective.
Location, location, location. Removing your employees from their normal work areas and the distractions that accompany it will likely improve the quality of your training outcome. Avoiding the distractions of day-to-day work operations allows the employees to focus on learning whatever it is you want them taught.
Atmosphere, atmosphere, atmosphere. The environment will dramatically impact the quality of the training. Make sure it isn't too hot, Continue Reading...

The topic of religion in the workplace always provides a danger for employers. In our post-9/11 world, we have continued to see tensions run high with respect to the Muslim faith. Our continuing wars in Afghanistan and Iraq have caused these tensions to remain and build over the years. With the recent outcry over the proposed Islamic mosque near the site of the former twin towers in New York City, this issue has been tossed onto the front of the newscycle. From an employer perspective, religion is a topic best left for outside the workplace. While this makes for a great philosophical approach, our employees are all human, and an employer expectation of a religion-free workplace is naive. With the holiday season around the corner, there is no better time to ponder methods how to avoid religious discrimination and maintain civility and respect for all.

Here are a few quick thoughts:

1. Make sure you have in place a well-publicized and consistently applied anti-harassment policy. The policy should contain a clear and concise complaint process. If you haven't trained your workforce on anti-harassment issues in the past year, consider having a short training session to refresh the topic.

2. If complaints are made, investigate them promptly and thoroughly. If you find a problem, take steps to stop the conduct. Even minor conduct that isn't unlawful can pile up until you reach a point the overall package of conduct is unlawful.

3. Even if there is no complaint, intervene if you become aware of possible policy Continue Reading...

It seems that everywhere I go this time of year I run into tables set up for the sole purposes of making sure I have taken a flu shot. Every retailer now seems to operate its own medical clinc for sole purpose of charging us for one of these fun flu shots. This reminds me of the oncoming winter season and the increased level of employee absences for illness or family illness-related reasons. So whether you take a flu shot or not, the flu season is on the doorstep. Here are a few thougths for the season:

1. React early to an attendance problem. Don't allow an employee to miss work on multiple occasions before applying your attendance policy to the situation.

2. Make sure you have a good understanding of what is driving the absence. Is there an illness issue for the employee or is it a family member concern? Is this the type of condition that might trigger an FMLA leave situation if you are covered by the FMLA?

3. If there is an FMLA leave situation at play, designate the leave and get it counted against the employees FMLA leave allowance. And make sure any discipline process is reviewed and withdrawn. You don't want to issue discipline for time off that is protected by the FMLA.

4. If there isn't an FMLA situation or a concern under the ADA, issue any discipline required by the attendance policy without delay. Don't get caught up in the story or the particluar situation.

Dealing with employee attendance concerns in a prompt Continue Reading...

One of the new realities for employers is the increased risk of a visit from an investigator working for the government. These visits can come at any time, without warning, and may be conducted by any number of government agencies. The typical visit for an employer is likely to be a wage and hour audit or an OSHA safety inspection. While these (and any other agency visit) inspections are in widely varying areas, there are some common themes for employers to consider. The worst time to prepare a workplace for an inspection/audit is when the inspector shows up at your door. Here are a few quick thoughts should your workplace receive an unwanted visitor from the government:

Plan ahead: The time to develop a game plan for an inspection is well in advance of the actual investigator's visit. Responding to an inspection in "crisis mode" is highly likely to lead to mistakes or oversights. The ultimate outcome is almost certainly not going to be as favorable to the Company as a situation in which a well-conceived plan is in place.
Communicate the Plan: Make sure all management team members all the way down to the lowest level of management understands the Company's plan of action should an investigator arrive. There is nothing worse than failing to implement a well-planned strategy because the individual meeting with the inspector doesn't know the strategy.
Have a Core Team: A group of individuals on the management team should be designated to handle the Company response to the arrival of any government investigator. This group Continue Reading...

A common message delivered to supervisors is to document, document, and document. The importance of keeping good records cannot be said enough. The records maintained by supervisors are critical to employers in defending claims asserted by employees. The notes/records made at the time tell the story at a time when the facts and circumstances are all clear and unvarnished by bias or the passage of time. Not only do these records help supervisors remember what happened at the time, they are the most accurate record of the events. The challenge, however, is to make sure those documents are prepared in the first place. Supervisors are busy dealing with the stress of operating the business at the same time they are managing scores of employees (all with personnel issues and concerns). Here are some ideas to help those supervisors:

Have A System -- Supervisors with a system are always going to be more successful in this area than those who rely on chance to get the events documented. It doesn't matter how the system operates as long as the events get documented and retained. Your system needs to be one that works with your style of leadership and organization. Here are a few techniques:

Employee Folders -- Maintain a file for each employee and drop copies of all notes and/or disciplinary documents relating to the employee into the folder. Make sure the storage location for the files is secure.
Notebook -- Use a notebook/journal and make notes of Continue Reading...

This installment of Tips & Tactics passes along some information related to employee evaluations.

Periodic -- Employers should establish an evaluation process to ensure employees receive periodic feedback regarding the employee's performance. There is no magic to the period to utilize; however, keep in mind this is sometimes the only time an employee gets feedback from a supervisor regarding job performance.

Ongoing -- Even though the evaluation process may only require an "annual" evaluation, supervisors should provide regular feedback during the evaluation period. In other words, supervisors should not save up all the constructive criticism (or praise) for the once a year sitdown with the employee. Take a few minutes to discuss concerns or to handout praise at the time of the event. Supervisors should make a note of these meetings to assist with completing any formal evaluation documents at the end of the evaluation period.

Honest -- The evaluations need to be accurate even if that means you might hurt someone's feelings. Performance will never improve if the employee isn't made aware of the deficiencies and given constructive guidance on how to improve in those areas. Too often supervisors have a tendency avoid the negatives and focus only on the positives. Not only does this hinder the employee's ability to improve, it also makes for bad evidence later when we terminate an employment relationship due to poor performance that was never documented in the evaluation process.

Interactive -- Use the evaluation process to engage the employee with respect to the employees goals and objectives. This is a good time to Continue Reading...

On a regular basis I will be posting a Tips & Tactics entry covering a wide range of practical employment law issues. This opening Tips & Tactics column passes along some information related to employee discipline sessions.

Investigate -- Prior to initiating any disciplinary action, the supervisory team should ensure they have all the facts. While investigations can be a topic of their own, the basic idea is to get the when, where, why, what, and who information all sorted out before making any final decisions.

Be Consistent -- Make sure the disciplinary action being proposed in the current situation is consistent with past disciplinary actions for similar situations. If this is a matter of first impression make sure you set the disciplinary consequence at the proper level for future situations that may arise. One suggestion in setting the discipline level for matters of first impression is to set the discipline level as if the employee involved is one of your best employees. This will help you avoid setting an improper consequence you will be forced to live with later because of your focus on the current situation.

Corrective Action -- The general purpose of disciplinary action is to correct or remedy a deficiency in the employee's performance. Take the time to provide concrete examples of the behavior being corrected along with a plan of action to assist the employee in correcting the behavior.

Confidentiality -- The disciplinary history for an employee is not for public release to the employee's co-workers. Make sure the disciplinary meeting and Continue Reading...