RESET THE CLOCK: REPLACE LIABILITY WITH CREDIBILITY MICHAEL J. MIRARCHI. TAB / SHRM Employment Relations Symposium An Excerpt from:

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M

ICHAEL

J. M

IRARCHI

M

IRARCHI

M

ANAGEMENT

G

ROUP

5201

D

EMOCRACY

D

RIVE

P

LANO

,

T

EXAS

75024

972-244-3438

www.resetclock.com

[email protected]

RESET THE CLOCK:

REPLACE LIABILITY

WITH CREDIBILITY

Practical Employee Relations

for HR Professionals

TAB / SHRM Employment Relations Symposium

An Excerpt from:

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Michael J. Mirarchi

President

Michael J. Mirarchi is recognized as a leading expert in employment‐related lawsuit prevention.

As an Employee Relations Counselor, he is dedicated to helping employers stay litigation‐free.

Drawing from over 30 years of experience in employment and labor law, as an employer defense

attorney and as a Human Resources Vice President, he developed a unique litigation‐avoidance

program. Through it, participants acquire significantly increased practical knowledge and a higher

level of confidence in addressing employee relations issues than they have ever had before. He

has presented his “Reset the Clock” program over 1,000 times to more than 25,000 leaders at

employer facilities across North America.

Mr. Mirarchi believes that the vast majority of leaders want to exercise their abilities with fairness,

integrity and professionalism. Nevertheless, if you lead people long enough, there are plenty of

opportunities to run into potential liability situations. In these situations, leaders who know what

to do and how to do it have a tremendous advantage over those who don’t, in avoiding lawsuits.

He has presented the HR Professional version of this program for SHRM Chapters across the

country, annually for Dallas HR.

In 2013, Mike was recognized as the first inductee into the HRSouthwest Conference Speaker Hall

of Fame. Over the last 25 years, he has consistently been one of the highest‐rated speakers,

excelling in content, professionalism and delivery.

In conjunction with various employer, industry and professional associations, he has conducted live

TV broadcasts, webinars and on‐line employee relations programs, in addition to presenting at

their regional and national conferences.

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PRACTICAL EMPLOYEE RELATIONS FOR HR PROFESSIONALS

RESET THE CLOCK A formal process which prevents a plaintiff attorney from taking something leaders did wrong or did not do and using it to attack future employee relations decisions that they make.

C

In effect, both employer and individual liability clocks are reset. Implementing Changes

in Terms of Employment

When a modification to employment terms occurs, employees must accept the new terms or quit. While no law requires that business decision be popular, changes are only enforceable if:

C

Adequate notice before implementation is provided.

C

The changes are reasonable.

C

The changes are conspicuously presented.

Procedure for implementing changes to attendance, performance or conduct standards:

Discuss the intended change with Human Resources.

Meet with your employees.

C

Explain what the change is, why their commitment to it is important and when it is going into effect.

— A "reasonable opportunity to achieve" is required before holding employees to meeting new performance standards.

C

Ask for and answer their questions.

C

Confirm that they know what they must do to comply with the new standard.

C

Ask for their commitment to comply with the new standard. — If anyone voices an objection, tell the group: "I'm available

to discuss in private any personal concerns about the new standard."

— If approached in private, explore assistance to the employee in meeting the new standard and remind him that everyone must comply with it.

C

Say that failure to comply will result in an appropriate response. Notify Human Resources that this meeting has been held.

Document the date and content of the meeting, who conducted it and who attended it.

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Delegation of Authority

Fundamental Duties Owed to Employer

Key Concepts of Effective Employee Relations

Harmonious Working Environment

A leader may take input from an employee on another and use it to make decisions. However, responsibility for the effects of those decisions rests with the employer and the leader.

C

Verify the input before taking action.

Delegation of authority to handle an employee relations issue does not transfer responsibility for the results.

Employers have a legally recognized right to insist that their employees fulfill certain fundamental duties:

C

Show up for work.

C

Perform the job.

C

Work well with others.

Maximize your use of these concepts and you will minimize your experience with legal challenges:

C

Be reasonable. It is more important than being logical.

C

Keep your focus on attendance, performance and conduct.

C

Fix problems: Recognize - Respond - Resolve.

Refrain from making offensive and derogatory remarks and jokes about race, sex age, etc., anywhere work is done.

Disassociate yourself and our organization from such comments or jokes that are made in your presence.

Subordinates or Peers: Immediately, publicly and loudly state:

C

"That remark doesn't reflect my attitude, and violates our

policy."

Senior Leaders: Report the matter directly to HR.

Non-Employees: Address inappropriate statements by contractors, clients, customers, vendors and visitors.

VIP's: After a VIP visitor’s remark, inform all witnesses that it violated your policy and they don’t have to interact with the person.

Reset The Clock: Through an employee meeting, handout and enforcement, maximize the effectiveness of your EEO policy.

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Personality and Attitude Problems

Generalized Disparaging Comments

Mental Condition

Employees are lawfully subject to corrective action for conduct stemming from their personality and/or attitude, including how well they get along with others.

Identify personality and attitude problems to an employee by observations of misconduct. Don’t say: "You've got a bad attitude." When taking corrective action or terminating, state:

C

"You shouldn't have done (or said) that."

“From now on you must avoid: Rolling your eyes, making loud sighs, throwing your hands up in the air, spinning around in place, using a sarcastic or condescending tone of voice.”

An employee's failure to get along with a leader can justify termination, despite a generally good work record.

If an employee with no history of specific complaints openly makes generalized statements of unfairness or discrimination, ask:

C

"Do you have a specific concern or complaint regarding unfair treatment or discrimination?"

— If the employee says no, coaching and counseling is appropriate. State:

C

"Non-specific disparaging comments are disruptive and must be avoided."

C

"If you ever have a specific complaint, use our complaint procedure. We will investigate and resolve it."

If the employee asks: "Is this going in my personnel file?" state:

C

"I'll keep a record of our conversation. But I do not see a need to put it in your file. Hopefully, you will not make any such comments and therefore no need for corrective action." To confirm that the employee has stopped the comments, ask the coworker: “Have there been any further comments since those you told me about?” If not stopped, take corrective action.

There are no mental conditions that excuse misconduct. If an employee claims a disability makes him misbehave, state:

C

“Let's consult with HR. Perhaps we'll find a solution that will resolve this problem.”

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Responding to Threats of Violence

On-the-Spot Counseling

Troubled individuals, through direct, veiled or conditional threats, may say precisely what they intend to do and the means by which they will do it before acting violently.

C

You must respond immediately to a threat because you never know how quickly a person making a threat will actually execute it.

How to initially respond: Immediately alert Security to your concerns or those of others reported to you.

C

Do not attempt to assess a threat, diagnose fitness for duty, or resolve an employee's personal problems on your own.

C

Use empathy, not sympathy in attempting to calm down an upset person. Make eye contact and listen attentively. Speak calmly and use relaxed body language. Ask:

— “I'm interested in learning from you your side of the story. What do you think the real problem is?”

— “What would you like to see happen?”

— “What can I do to help?”

While there is a difference between making a threat and posing a threat, both require appropriate intervention. In most cases, it is possible to separate talk from a real possibility of violence.

Alert an employee immediately upon observing an instance of poor performance and give him an opportunity to resolve it. State:

C

“I've got a problem and I need your help.”

C

“I’ve noticed a gap between your performance and what I expected, specifically .”

C

“What can you tell me about it?”

— If the problem is due to a deficiency in knowledge, training may solve it.

— If it’s due to deficiency in execution, explore why and ask for a commitment to correct it.

Maintain records of all “on-the-spot” performance counseling.

C

Ongoing Process: Notice - Notify - Note

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Corrective Action Meetings

Non-Specific Complaints

Discharge Meetings

Describe the specific problem to the employee in terms of the expected behavior and his actual behavior.

If asked “Are you going to fire me?” state:

C

I'm confident that you can turn this situation around. Isn't my confidence in you justified?”

— If given a negative response, a decision reached in consensus with HR to terminate the employee would be appropriate.

When you are counseling an employee about an attendance -performance - conduct problem and the employee complains, “When are you going to stop harassing me about this?” state:

C

“You have to meet the standards that I have made clear to you.

C

When I notice a problem, I will bring it to your attention.

C

This provides you with an opportunity to correct it.

C

This process will continue until the problem is resolved.” If an employee states that the termination is discriminatory or unfair, state:

•

"I understand that is your position, but we do not agree with you."

Be compassionate (e.g., "I understand this is difficult news to get.") but do not apologize (e.g., "I'm sorry ...").

If you are asked about the status of anyone else, state:

•

“It would be inappropriate for us to discuss the situation of any other employee.”

If an employee asks about unemployment compensation, state

•

“If you apply, I expect you to tell the truth. Count on me to do

the same. The agency makes its own decisions.”

If asked in an exit interview, "Am I eligible for rehire?" state:

•

"Everyone has a right to file an application. Your prior service

will be a factor in whether you will get an offer."

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