HR Base Camp Roundup – May 4th, 2022

After a lively discussion on common areas of HR confusion at the 2022 SOMSA Conference in Scottsdale, we decided to pull this week’s HR Q&As directly from those asked of our Solution Center Advisors by the owners and practice administrators at that event. Here are our top five questions for this week’s Roundup:

  1. After you give someone coaching, is there a time that the validity of that coaching expires when it comes to termination?
  2. If you provide corrective coaching to an employee, should you put a time limit on how long they have to improve and then follow up after that listed time?
  3. Is it a legal requirement to have a witness present for a termination meeting? Should you record the meeting?
  4. How detailed should you get when you’ve terminated someone and you get a reference call about them from another employer?
  5. How do you handle it when an employee who left on their own terms files for unemployment?

 

Join CEDR HR expert Hali Staton for a live presentation of Hiring Difference Makers: Recruitment Strategies and Beyond on May 18 at 11 AM PDT. Click to save your seat.
 

After you give someone coaching, is there a time that the validity of that coaching expires when it comes to termination?

In short, no. Generally speaking, you’ll want to keep performance evaluations, notes from coaching sessions, corrective actions, and other documented conversations you have with employees throughout the entire duration of their employment.

The idea here is to build a documented history of how an employee has performed at your practice throughout their employment. That way, if an employee presents consistent performance or behavioral issues over time and you ultimately determine that the best course of action is to terminate, you’ll have documentation on hand that supports your reason(s) for termination.

The following situations are things we want you to avoid: 

  • You have talked to an employee on multiple occasions about a variety of performance issues, but have no documentation on file showing that you coached them. 
  • You documented a coaching conversation once several months ago, but then never followed up with additional documentation noting the employee’s failure to improve their performance or demonstrating other ongoing issues with the employee.
  • You have an employee that only has a history of glowing performance reviews or other documentation and then decide to terminate.

You probably noticed a theme! Good documentation is good and no documentation is not so good.

A gentle reminder: your at-will status may cause you to feel safe terminating for “no reason”, but the reality of the situation is that nobody ever terminates an employee for no reason. And, if you have no documentation showing a history of performance or behavioral problems with an employee, after the fact, they may get to make the reason up for you instead of your documentation being able to easily refute a false claim for terminating them, such as discrmination.

This is one of the big reasons why consistent documentation is so important for employers. As part of CEDR membership, our Solution Center Advisors are always available to help document and walk you through the process to help you get the best possible results while also building protections for your practice. We can even provide the necessary documentation to you based on the specific circumstances of your situation.

If you are a CEDR Member and need to talk with an HR expert about a potential termination or a problem you are having we gotcha! Submit a support request here.

If you are not a member, we would like you to be in the best possible position when you do join us! So we’ve decided to provide the following free template forms to help you document performance issues and even informal conversations like, one on ones, you have with your employees:

We also have the following guidance to help walk you through employee separations and coaching:

Get your free corrective action form from the HR experts at CEDR. Click to download!
 

If you provide corrective coaching to an employee, should you put a time limit on how long they have to improve and then follow up after that listed time?

The method of creating a timeline and an entire plan for improvement is generally known as a Performance Improvement Plan, or a PIP. Widely recognized as a precursor to firing an employee, PIPs are generally designed to give an employee a few extra weeks to demonstrate why they should be terminated. 

Yes, there are those who would differ with that assessment and offer alternative explanations. But, in the end, employees see PIPs as “the writing on the wall.” 

Subsequently, instead of being in an active conversation with their manager and working towards immediate improvement supported by frequent opportunities to seek assurances, the employee is preparing for the inevitable and often ends up doing damage. 

When asking an employee to improve an aspect of their performance or behavior, we would generally recommend against putting a specific time frame and plan together on when you would like to see the employee improve or when you plan to reevaluate their performance. In fact, doing so essentially amounts to putting restraints on yourself as an employer. 

With noted exceptions, if you are on top of their general performance and working towards shared outcomes with your team, when having a 1:1 conversation with an employee and addressing an issue, serious or not, you should request an immediate and specific change. 

“Can you please (not be late / improve your professional communication / pay more attention to specific details / not leave early / follow the scripts / check your work / chart better / etc.)?” are all things that don’t need a plan. They need to be addressed immediately. 

If you follow CEDR’s FIRR method, that last ‘R’ stands for “Request,” and we generally mean can you stop being late NOW! 

All of the aforementioned does not mean that your requests won’t, on occassion, need to take a formal written form. When conversations and requests for improvement seem to need to happen over and over again, you will need to go beyond just making notes, to formal documentation. But even then, we want to see immediate and sustained improvement. 

What’s more, stating that an employee has a certain amount of time to improve an issue could potentially damage your at-will status as an employer

If you have questions about how to approach a coaching conversation with an employee, how to engage with an employee to motivate them to improve, and/or how to have conversations that protect your practice along the way, reach out to a Solution Center Advisor for help.

CEDR Members can submit a support request here. If you are not a CEDR Member yet, click here to talk to someone about membership.

 
Get your free corrective action form from the HR experts at CEDR. Click to download!
 

Is it a legal requirement to have a witness present for a termination meeting? Should I record the meeting?

Where it is not a legal requirement that you have a witness present when terminating an employee, we get a different form of this question often. That question is, “Should I have a witness in the room when I terminate?”

Let’s start with this scenario: You have a business with between 5 and 10 employees. As the owner, you have no manager and, taking into account the makeup of your team, it is simply not appropriate to have one of the other team members present for a termination of their fellow employee.

The tendency to think you might want to record the termination is one we want you to avoid. A live recording of what can be a traumatic event has the potential to spin out of control. In fact, you have no idea how the conversation is going to go or what is going to be said. And, once said, the entire recording is now evidence and cannot be destroyed. 

As business owners and managers, HR is a hat we put on when it is needed. While we may get very good at things like one-on-ones and leading, the practice of firing is not something we hope you ever get good at! We say that because, if teams are working well together and leaders are doing their job, the need to fire should be infrequent. 

So that brings us back to why you want, in the best case scenario, a witness or, at the very least, someone who will not trigger the employee who can be present and/or listening close by.

Your witness need not take part in the actual termination conversation at all. Their role is to provide support in the event that the terminated employee later says that you behaved inappropriately, provided an illegal reason for their termination, or if the departing employee otherwise attempts to manipulate the facts of the situation. Likewise, a witness can be there to help calm things down should they spin up and out of control. 

We understand that, at smaller practices and businesses, it may be difficult to find someone who can fulfill this role – maybe you don’t have an office manager who can sit in on the termination meeting.

When this is the case, you should still make an effort to inform someone present and ask them to remain in the general vicinity during the termination conversation. Keep the door open to the meeting and make sure that the employee being terminated has a clear path to the exit to further minimize your risk that something goes awry. Also, make sure that you have carefully considered the protocols in this document.

Again, having a witness present for your termination meeting is simply a matter of ensuring that you have someone who can corroborate your version of the events as they happened. Whereas a termination that takes place without a witness present can easily become a matter of your word versus theirs if the employee decides to make a claim against you or your business later.

The risks involved with termination are nuanced and many, which is why we ALWAYS recommend that you work with an HR expert any time you start to think that a termination might be in order. As with pretty much every HR issue, it’s best to get ahead of these types of situations and be prepared for them in advance than it is to address them on a reactionary basis in the moment.

If you are a CEDR member and are facing a potential termination at your practice, reach out to CEDR to make sure you have all of the proper documentation in order and your business is protected before the meeting takes place.

If you are not a CEDR member yet, we provide the following free resources to help you better prepare to face terminations at your business:

You can also click here to learn more about membership or schedule a brief call to talk about becoming a member here.

Sometimes the right thing to do is say goodbye. Click to download CEDR's free separation guide.
 

How detailed should you get when you’ve terminated someone and you get a reference call about them from another employer?

Keep reference calls brief and limit the information you share on those calls – stick to confirming factual information such as the employee’s name, dates of employment, and position. We recommend having a policy in your employee handbook about how your business handles reference calls so every employee knows what to expect when someone calls you for a reference (every customized CEDR employee handbook contains such a policy). 

We do not recommend going beyond that limited scope unless the former employee has signed a reference release form that gives you permission to speak more freely and states that they will not hold you liable for what you end up saying on reference calls. This is something the HR experts in the CEDR Solution Center can help you with (CEDR Members can submit a support request here). 

Also, be extremely careful about providing information about the former employee’s pay – or asking about it yourself when you’re the one reference checking a potential new hire – as an increasing number of states prohibit this information from being shared. 

Whatever you say on a reference call from another employer, make sure you stick to the facts – things you observed or experienced directly – and avoid any temptation to speculate or offer any opinions about the employee or their behavior in general. When it comes to reference calls, slipping into the realm of speculation, opinions, or gossip is where things can really start to get risky. The prevailing sentiment  across all HR Professionals is “less is more,” and we agree.

The one noted exception might be if your former employee violated some kind of law or committed some kind of an act that needs to be revealed as a matter of public safety. In these instances, it is IMPERATIVE that you speak with a qualified HR professional prior to having that kind of conversation about a former employee with anyone.

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How do you handle it when an employee who left on their own terms files for unemployment?

In most cases an employee who voluntarily resigned is not eligible to receive benefits, as they had work available to them that they declined to do, but there are many exceptions to that rule and they vary by circumstance and state. 

In general, we do not recommend spending a lot of your time and energy fighting unemployment claims. Remember that unemployment payments are not coming directly out of your pocket. Yes, the number of successful unemployment claims from former employees can impact the amount of unemployment taxes you’re paying. But how that’s done is based on a lot of factors and one or two people collecting benefits isn’t likely to impact you. 

Ultimately, an employee’s right to file for unemployment is protected by law. Anyone can file for unemployment at any time – even if they are still employed! – and it is up to your state to determine whether or not someone is entitled to receive those benefits based on the circumstances. 

If you’ve been doing a good job of documenting office policies, performance issues, coaching discussions, and the circumstances surrounding the employee’s separation, then you have what you need when you are asked to respond to an unemployment claim. 

If you get notice that a former employee applied for benefits, you want to do two things in your response. First, correct the record if you need to. Second, provide documentation about the separation. Remember, you don’t decide whether they’re eligible for benefits – and the state isn’t asking for your opinion on eligibility. All you’re being asked to do is to supply the state with factual information about the employee’s separation so they can make an objective decision. 

Even if you have no issue with this person collecting benefits, you may need to “correct the record.” Meaning, if you can see that the employee is saying something about their separation that is untrue, you want to address that with the unemployment office so there’s a legal record of you objecting to that statement. 

Being able to easily respond to unemployment claims is yet one more reason why it’s so important to make sure you have your documentation in order any time you separate from an employee, whether that separation is due to a termination or a voluntary resignation

That way, when the state comes to you for information about the conditions surrounding an employee’s departure, you will be able to provide them with a short, factual statement of what happened along with documentation that specifically supports that statement. This can include a resignation form or email from the employee, a termination letter supported by violations of acknowledged policies or previous warnings, performance evaluations, corrective actions, and anything else. 

Even if the employee is granted benefits, you as the employer will still have a right to appeal that decision if you would like to. Again, this is another situation where the documentation you have available will be crucial to help you tell your side of the story. And again, we ask all our members to weigh the cost of being right and spending too much time fighting a claim when your finite time could be spent elsewhere more productively. 

Every CEDR employee handbook is customized to comply with state laws and your office policies, and to provide the maximum possible protection to our members. You can learn more about CEDR’s employee handbooks here.

The HR experts in the Solution Center are also on hand to answer your questions about the HR and team management issues facing your business at any given moment and to help walk you through addressing those issues in the most compliant and effective way possible. You can learn more about the Solution Center here.

If you are a CEDR Member and have an HR or team management issue you need help with, submit a support request here.
 
Join CEDR HR expert Hali Staton for a live presentation of Hiring Difference Makers: Recruitment Strategies and Beyond on May 18 at 11 AM PDT. Click to save your seat.

May 2, 2022

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.
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