2. – KPA CONFIDENTIAL –
KPA – Company Profile
• Nationwide
compliance expert on
Safety, Environmental,
HR
• Colorado
Headquarters
• 23 Years Experience
• 3000 + Clients
– Dealerships, Service,
Repair
• 20 Offices Serving 41
States
• Compliance products
and services
– OSHA
– DOT
– EPA
– Workers’ Comp
– Background checking
– Onboarding
– Harassment
– Red Flags
– Onsite inspections
– Online and onsite
training and tracking
– And many more…
3. – KPA CONFIDENTIAL –
Presenter
John P. Boggs, Esq.
Fine, Boggs & Perkins LLP
(650) 712-8908
jboggs@employerlawyers.com
4. – KPA CONFIDENTIAL –
Questions
• If you have questions
during the presentation,
please submit them
using the “Questions”
feature
• Questions will be
answered at the end of
the webinar
5. – KPA CONFIDENTIAL –
Agenda
• Performance Improvement Plans
– Performance Deficiencies
– Rule Violations
• The Ten Deadly Questions
• Termination Checklist
• Conducting the Termination
55
6. – KPA CONFIDENTIAL –
1. Performance Deficiency
* Follows the Rules but just can’t live
up to expectations
2. Rule Violations
* May perform well but can’t seem to
follow the rules
COMBINATION OF BOTH
Two Reasons for Discipline or TerminationTwo Reasons for Discipline or Termination
7. – KPA CONFIDENTIAL –
Rule Violations
F.I.N.E.
Find Published Rule (Employee Handbook)
Identify Specifics of How Rule was Broken
Notice as to What is Expected
Explain Outcome if Continues or Decision
Now
Discipline/Termination
8. – KPA CONFIDENTIAL –
Performance Deficiencies
N.E.A.T.
Notice of Expected Standard
Explain
1. Performance Deficiency
2. What Must Be Done
Assistance to Improve
Time to improve
Discipline/Termination
9. FALSE PRETEXT
The reason given for discipline was untrue; and
-The true reason for discipline was
discrimination.
-Discrimination is considered to have been a
“reason” if it was a motivating factor.
Avoidance The Appearance ofAvoidance The Appearance of
DiscriminationDiscrimination
10. 1. Do you feel comfortable after your
investigation that you will be able to prove,
with evidence, that the employee violated
the rule, or the standard of performance
was not met, and that you have treated
other similar situations with the same level
of discipline in similar circumstances?
Legal Liability Checklist
11. 2. Are there any prior commitments (written
agreements or promises) in employee's
personnel file regarding a specific term of
employment, continued employment or a
requirement of just cause for termination
of employment?
Legal Liability Checklist
12. 3. Are there any complaints or claims
(formal or informal) that the employee has
made against the company, any co-
worker, customer or vendor? (e.g.,
harassment, discrimination, retaliation,
unpaid wages, workers compensation
claims, safety issues, labor regulation
violations, dishonesty, customer fraud or
other claims that the company violated the
law in any way, etc.)
Legal Liability Checklist
13. 4. If the employee falls into a "protected
category" (e.g., minority, race, religion,
color, sex, sexual orientation, national
origin, ancestry, citizenship status,
uniform service member status, marital
status, pregnancy, age/over 40, medical
condition—cancer related or HIV/AIDS
related, disability, or transgender status),
does the employee's "protected category"
represent a relatively small portion of your
workforce or the employee's work group.
Legal Liability Checklist
14. 5. Has the employee taken any leaves of
absence within the last year? (Medical
leave, Family Care leave, Pregnancy
leave, Drug/Alcohol Rehabilitation leave,
Workers Compensation leave, etc.)
Legal Liability Checklist
15. 6. Have you disciplined others for this same
general rule violation or performance
deficiency?
Legal Liability Checklist
16. 7. Has the level of discipline imposed been
substantially the same for the same
violation or performance deficiency for
other employees?
Legal Liability Checklist
17. 8. Have you failed to discipline anyone for
the same general rule violation or
performance deficiency, even though
some other employees may have been
disciplined for it?
Legal Liability Checklist
18. 9. Have you given different levels of
discipline to different employees for the
same general rule violation or
performance deficiency?
Legal Liability Checklist
19. 10. Do you plan to terminate the employee?
Legal Liability Checklist
20. Does Your Investigation Prove it?
• Document the complaint
• Who, What, When, Where,
Witnesses, etc.
• Collect Relevant Documents
Build Your CaseBuild Your Case
21. Rule Violations
• Investigative Statements or
Questionnaires
• Written Record of Investigation
• Signed Under Penalty of Perjury
• Interview the Accused
• Have a Witness
• Complete & Sign the Statement
• Suspend the accused pending
completion of the investigation
Build Your CaseBuild Your Case
22. More Investigation = More Credibility
• Confront the Accused – A
Chance to Explain
• Have a witness
• Prepare a wrap-up
memorandum
• Prepare a written termination
notice
• Consult counsel prior to
termination
Build Your CaseBuild Your Case
24. Find out what has been done in similar situations in
the past.
Also consider whether any other employees currently
are in a similar situation.
Compare the protected categories of current and
former employees in similar situations.
Avoid Discriminatory DecisionsAvoid Discriminatory Decisions
25. Determine if you can distinguish leniency in
similar situations.
Document why current discipline scenario is
different than other non-discipline scenarios.
“Start Fresh” and hold back on more severe
discipline
Avoid Discriminatory Decisions
26. • Do not terminate in anger or with
enthusiasm
• Require a second approval within the
organization
• Suspend pending investigation
• Contact counsel prior to termination
• Identify the Land Mines
Termination Considerations
You are stuck with the company’s history, but you can distinguish if you think about it ahead of time example: employee who is late every Monday morning and you want to discipline them
