Posts Tagged ‘documentation’

Fla. School System Settles Citizenship Bias Case

We seem to be in a spree of employers behaving badly under the nation’s immigration laws.

Now it is Miami Dade County Public School’s turn to make good for allegedly requiring non-U.S. citizens to present documents showing their eligibility to work in the United States, but not requiring the same of U.S. citizens.

The U.S. Department of Justice said today that MDCPS will pay a $90,000 civil penalty to the United States and will establish a $125,000 back pay fund to compensate individuals who lost wages because of the MDCPS’ practices, under a settlement of DOJ’s claim against the school system for violation of the Immigration and Nationality Act.

The INA’s anti-discrimination provision prohibits employers from making specific documentary demands based on citizenship or national origin when verifying an employee’s authorization to work, the DOJ reminded employers.

Here’s the DOJ’s announcement of the settlement.

For two other INA cases within the last week, click here and here.

 

Giving Employees a Second Chance

Better to give underperforming employees a second chance than to show them the door immediately, says Robin Paggi, our resident HR columnist. Learn why.

Giving Employees a Second Chance

In his article “Hire Slow, Fire Fast” on http://www.forbes.com, Patrick Hull tells readers that, “If a person that you hire is not working out, don’t hesitate to move on quickly…I know many businesses that took time to try and change someone. I haven’t seen it be successful. People don’t change.”

I disagree. As an HR consultant, I have coached a number of clients’ employees who needed to change their behavior in order to remain employed. Some were able to do it and some weren’t, but giving people an opportunity to improve is important for a couple of reasons.

The first reason is that people usually are oblivious that their behavior is a problem. Why? Mostly because we don’t see ourselves as other people see us. For example, we might think that we’re confident and assertive while others think that we’re a blow-hard. We might think that we’re fun and charismatic while others think that we’re inappropriate. People are also oblivious that their behavior is a problem because others don’t tell them that it is. Employees need to have honest feedback about how their behavior affects the workplace in order to improve. It’s amazing what can happen when someone is told specifically what he or she is doing (or not doing) that is problematic.

For example, many years ago a manager told me that he refused to promote an employee into a supervisory position because the employee acted strangely. Despite the fact that the employee had applied for a promotion numerous times, the manager never told him why he wasn’t being promoted. I encouraged the manager to tell the employee about the specific behavior that he was exhibiting that was holding him back. A couple of months later, the manager told me that he wanted to promote the employee. With specific feedback and guidance, the employee was able to change the problematic behavior. The employee benefitted because he got the promotion he desired and the manager benefitted because the employee now behaved in an appropriate manner.

The second reason to give employees an opportunity and the tools to improve is, frankly, because it makes employers look better if they have to defend a termination. Firing employees too fast is one of the top ten things employers do to get sued, according to the article “Hostile Work Environment – 10 Things Bully Bosses do to Cause Lawsuits” on http://undercoverlawyer.hubpages.com. The author, a defense attorney, says that, “employers who take a long time to try to improve a negative situation with an employee, and who can show gradually increasing discipline over that time period are the ones who will look better in court. Juries like it when it looks like the employer went well beyond the minimum legal requirements and tried everything possible to ‘save’ the employer-employee relationship, but despite the boss’s training and coaching the employee just refused to do the work.”

Obviously, I’m in favor of giving employees a chance to learn new behaviors to improve their performance. However, I’m not in favor of giving employees too many chances. Doing so doesn’t inspire employees to be accountable and it can backfire on employers.

An excellent example of such backfiring is an unemployment hearing that was documented in the article “Should Employees Be Given Second Chances?” on http://www.hrlawmatters.com. Author Tashwanda Pinchback says that, despite committing numerous infractions (stealing time, excessive tardiness, and being rude during a counseling session), an employee was offered a different work shift instead of being fired. The employee declined and was subsequently terminated. At the unemployment hearing, the employee said he was fired for not accepting the position. In the employer’s defense, the manager presented the list of the numerous infractions the employee had committed, to which the hearing officer asked:

• If you have documented evidence that he was stealing time, why didn’t you terminate him then?
• If arriving to work on time is an essential function of his position, why did you wait until he was tardy 42 times before terminating him?
• If he was unprofessional during a counseling session, had already stolen time, and demonstrated a pattern of excessive tardiness, why didn’t you terminate him at that point?
• And why after all of the aforementioned issues with his job performance did you offer him another position within the company?

The employee did not get unemployment benefits; however, this example demonstrates that courts could become suspect of an employer’s motive to terminate when the employer allows an employee to repeatedly behave inappropriately without consequences.

Something else that causes suspicion is a lack of documentation. If you are giving employees more chances, be very diligent about documenting the performance issues or the delay in termination will generally backfire too.

My advice to employers is to give wayward employees the opportunity and tools to improve. If they can’t turn their behavior around in a reasonable time period, then guide them toward the door.

Robin Paggi is the Training Coordinator at Worklogic HR.

Robin last wrote for us about making sure the applicant is a good fit for the job and before that about  cure for inappropriate behavior at work. Before that she wrote about cyberloafing, on business lessons from a Christmas story and before that about cell phone policies at work. She has also written for us on rules for holiday parties at work and before that about preventing workplace bullying.

Documentation and Discrimination

For today’s posting, I am delighted to welcome guest column regular guest Robin Paggi, an HR consultant based in Bakersfield, California. Robin writes for Kern Business Journal and Bakersfield Magazine on HR-related topics, and she also is a regular guest on Moneywise Radio (KERN) and on KGET (local NBC affiliate). Check back here periodically for more of her columns on HR topics.

Documentation and Discrimination

 By Robin Paggi, MA, SPHR-CA, CPLP, CPC

We’ve all heard the real estate agent’s mantra, “location, location, location.” Human resource professionals and employment attorneys have a similar mantra, “documentation, documentation, documentation.” Why is documentation important for employers? Numerous discrimination lawsuits demonstrate the reason.

In the case of Brockman v. Avaya Inc, a federal trial court allowed a discrimination claim to be determined by a jury because the employer’s documentation for firing a pregnant employee was deemed inadequate. According to court documents, Ashley Brockman was terminated from her managerial position at Avaya, Inc. (a computer consulting company) after disclosing to her supervisor that she was pregnant. Brockman claimed that she was terminated because of her pregnancy. The company claimed she was terminated because of her lackluster performance and that the decision to fire her was made three days before Brockman learned that she was pregnant. However, court records state that the company’s defense that the employee was terminated because of poor performance was found lacking because:

  • No written documentation supported the claim that Brockman’s supervisor intended to terminate her before she disclosed her pregnancy to him;
  • Brockman’s supervisor claimed to have written and then lost an official document outlining his reasons for terminating her;
  • Brockman’s supervisor failed to document any coaching sessions he allegedly provided her, which violated company policy; and,
  • Brockman’s personnel file, which should have been in her supervisor’s possession, was missing.

Lesson learned: employers and supervisors should document performance problems and conversations with employees regarding those problems. An absence of documentation (or shoddy documentation) poses legal risks for employers.

In the case of Vaughn v. Edel, favorable evaluations of an employee who did not deserve them led to a lawsuit. According to a summary of the case on www.leagle.com, employee Emma Vaughn received favorable performance evaluations, merit increases, and no criticism of her work performance before being terminated by Texaco, her employer. Texaco management stated that Vaughn was terminated for poor performance, even though its documentation demonstrated otherwise. In its defense, Texaco management stated that they refrained from confronting Vaughn about her poor performance because she was black. Ironically, “this direct evidence clearly shows that (her supervisor) acted as he did solely because Vaughn is black…Vaughn has, consequently, established that Texaco discriminated against her,” reported www.legale.com.

Lesson learned: no good deed goes unpunished. Employers and supervisors should be truthful in their evaluations of employees and their documentation should reflect this honesty.

Documentation is helpful for employees as well as employers. Documentation and discussions with employees concerning the incidents being documented helps employees know what’s expected of them and when they are not meeting expectations. In her article “The Case for Documenting Performance Issues” on www.allbusiness.com, consultant Barrie Gross emphasizes that, “Discussions about performance along the way are critical to the employee’s success.”

Of course, documenting those discussions will help protect employers if an employee is terminated for failure to meet expectations. For example, in the case of Coleman v. Blockbuster, Inc., employee Tyra Coleman was unsuccessful in her discrimination suit against Blockbuster because the company was able to demonstrate through its documentation that Coleman was fired for poor performance. According to an article on the case on www.employmentlawmatters.net, Coleman received two “Corrective Action Reports” (CARs) for her store’s poor performance. She received a third CAR for missing a mandatory meeting that stated “Failure to improve will result in termination of employment.”  Shortly thereafter, Coleman closed her store early and left the premises because of a medical emergency with her son. After being terminated, she filed suit for racial discrimination. The court that heard the case found that “Blockbuster came forward with solid evidence to demonstrate that the reason for Coleman’s termination was dereliction of duty” and ruled in the company’s favor.

Lesson learned: just as the location of a business can increase its success, documentation of the poor performance of its employees can protect its assets.

Chipotle Under Spotlight in Immigration Investigation

Document audits instead of raids by agents now seem to be the weapon of choice in the Obama Administration’s effort to stamp out illegal immigrant labor.
 
Several media reports indicate that Chipotle Mexican Grill, Inc. is the target of a countrywide audit of I-9 forms by Immigrations and Custom Enforcement. The Wall St. Journal reported that the company, which owns and operates about 1,100 outlets across the United States, was forced in recent weeks to fire hundreds of workers in Minnesota for whom the company lacked adequate documentation.
 
Notices of inspection have been served on 60 restaurants in Virginia and Washington, D.C., said a company spokesman.
 
And with announced plans to open 135 to 145 more stores in 2011, the company can count on continuing to be in the federal government’s bulls-eye.
 
The Obama Administration has made employers “the centerpiece of its immigration policy by setting up raids of company documents,” the report said.
 
ICE will also establish an Employment Compliance Inspection Center to “intensify a crackdown on employers of illegal immigrants.”
 
In the fiscal year that ended Sept. 30, ICE conducted audits of more than 2,740 companies, nearly twice as many as in the previous year. The agency levied a record $7 million in civil fines on companies that employed illegal workers.
 
Remember, it’s the employer’s obligation under the law to verify that a worker is eligible to work in the United States. The employee must produce two sources of identification for the employer’s inspection within three business days of hire. The I-9 Employment Eligibility Form lists the acceptable documents.