Fall 2014 Management and Supervision Drake Maynard PERSONNEL LAW FOR HR Services, LLC PUBLIC HEALTH PROFESSIONALS 919.259.3415 | Carrboro | October 2014 dmhrservices@gmail.com Drake Maynard HR Services, LLC 919.259.3415 | dmhrservices@gmail.com Where We Are, Who We Are, How Do Things Happen – Our Context Today • County Employees/District Employees • State Human Resources Act • Authority of the Health Director • County HR • OSHR • State Human Resources Commission • Office of Administrative Hearings • Consolidated Human Services Agencies 2 The Laws We Live By • US Constitution – 1 st Amendment, 4 th Amendment, 5 th Amendment, 14 th Amendment • NC Constitution embodies the same principles • State Human Resources Act – NCGS Chapter 126 • NCGS Chapter 153A – Counties • NCGS Chapter 130A/Article 2 – Local Health Departments 3 1
Fall 2014 Management and Supervision Employment Laws • Title VII – EEOC o Race, Color, Religion, National Origin, Sex/Harassment/Reasonable Accommodation/Retaliation • Americans with Disabilities Act As Amended (ADAAA) – EEOC o Disability/Perceived Disability/Reasonable Accommodation • Age Discrimination in Employment – EEOC o 40 Years of Age or Older • FLSA – US Dept. of Labor o Work week/Premium pay • FMLA – US Dept. of Labor o Unpaid leave – Self/Spouse/family – Serious Health Condition 4 The Legalities Of Hiring • The Application o Gaps in employment history o Arrest vs. conviction • Match what you need in the job with what you recruit for • “Illegal” questions vs. High Risk questions • References o Check references, really o How to check references o Legal protection for responding truthfully to a request for reference ‐ NCGS 1 ‐ 539.12 Qualified immunity when giving references o Getting a release from current/former employee to give honest, fact ‐ based reference. 5 Types of Employment Status • At will • Contract • Career status ‐ What does it mean? How do you get it? • Property interest • Due process 6 2
Fall 2014 Management and Supervision Managing Performance & Conduct • Why do we do this? What do we hope to accomplish? • At will, non ‐ career status and career status employees • Performance vs. Conduct 7 Managing Performance • Performance is: • Accuracy • Timeliness • Quality • Quantity • Attendance 8 Managing Performance – The Written Warning The Written Warning • How, when & where to deliver it • Why you want to listen to what the employee has to say • How long does this go on? Reference: Written warning template in your materials 9 3
Fall 2014 Management and Supervision Managing Performance • What do you do if performance issues continue? • Demotion and Suspension – when to use them and why 10 Managing Unacceptable Conduct • What is unacceptable personal conduct? • Intent • Criminal and non ‐ criminal conduct • Level of appropriate discipline for personal conduct 11 Managing Unacceptable Conduct • Off ‐ duty conduct – when to take action, when not to take action o Nexus o Level in the organization o Public notoriety • Insubordination o Refusal o To carry out a reasonable order o From an authorized supervisor 12 4
Fall 2014 Management and Supervision Investigatory Status With Pay • What is it? • When do you use it? • Is it grievable? Reference: Investigatory status letter in your materials 13 The Pre ‐ disciplinary Conference • What is it? • When is it required? • When is it useful? • The FMLA cheat Reference: Pre ‐ disciplinary conference template in your materials 14 Dismissal • Performance and Conduct • Time frame for rendering decision • How to inform the employee o In person o By mail – ONLY certified mail, return receipt requested • The wrap ‐ up o Getting agency property, keys, ID badge o Meeting with HR to go over information on last paycheck, COBRA, etc. Reference: Dismissal letter template in your materials 15 5
Fall 2014 Management and Supervision How To Avoid Being A Problem Magnet – Discipline & Dismissal • Always follow your own policies and procedures and if you don’t, have A terrific reason for doing so [not that it will help] • Document, document, document • Do Not Retaliate • Give A reason for termination (and NEVER change your reason) 16 How To Avoid Being A Problem Magnet – Discipline & Dismissal • Make sure the facts support your reason for taking action • Think twice (then think again) about terminating an employee for poor performance with one or more good evaluations • Investigate promptly and take appropriate action • Trouble NEVER goes away – don’t just stand there, do something 17 Drug Testing And The Constitution • Fourth Amendment – “unreasonable search and seizure” • Private employers vs. Public Sector employers • What is “reasonable” 18 6
Fall 2014 Management and Supervision “Reasonable” • “Reasonable” – balancing the interests of the government employer with the interests of the citizen employee in protecting his privacy • Reasonable suspicion that an employee is or has been using drugs • Random drug tests for “safety sensitive” positions • Random drug tests for all employees 19 “Safety Sensitive” • Generally, courts restrict positions/jobs that can be labeled “safety sensitive” • Immediacy of the threat from a potential drug ‐ induced mistake or failure in the performance of job duties. 20 Drug Testing Applicants • As opposed to current employees • Lower expectation of privacy • “If an applicant doesn’t want to take a drug test, don’t apply.” 21 7
Fall 2014 Management and Supervision Wrap Up • Your questions • What didn’t we cover that you wanted to talk about? THE END 8
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