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Just Cause Termination

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Question:

Can you terminate a stock room employee for failing to find a piece of needed equipment that he could not locate in the drawer when we had six on hand? He said we didn’t have the part when in fact we did.

Answer:

In an at-will State, an employer can terminate an employee for a bad reason, a good reason, or a silly reason – as long as the reason isn’t against the law. In your situation, the employee displayed either incompetence or inattention to detail and could in fact be fired for this reason alone. The qualifier in this, or in any case of termination, is whether the employee is being discriminated against because of age, race, religion, gender or disability. Each of these factors is covered by protective labor laws such as Title VII of the Civil Rights Act. Specifically, if employees who are Caucasian, for instance, are not fired for the same offense but only Black men, or Hispanic women, or people over 40 are fired there might be a case of (illegal) discrimination.

The deciding factor in a discrimination case is the answer to the question: was the employee fired for just cause (i.e., not locating a part and perhaps causing a lost customer) or fired solely because of race, color, etc.? To prove a just cause case you better be able to explain who, what, when, where, and why something occurred. Do you know why this person couldn’t find the part? Were they properly trained? Can you prove they were properly trained? Was there an investigation that can show that they knew what they were supposed to do and how to do it but just “didn’t do it”?

Bottom line – do a thorough investigation and make sure you have solid documentation. Without it any reason, or no reason, terminations are more likely to become discrimination lawsuits.

Terminations are one of the most difficult aspects of Human Resources. Even when justified it can be difficult to let someone in the workforce go. When not justified they can be a risky move for any company. Strategic HR can walk you through a termination, assist with the investigation and provide a third party objective look at each case. Visit our Employee Relations page to see how we can assist you with employment issues.

 

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How Long Should We Keep Resumes and Applications?

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HR Question:

We’ve received a lot of resumes recently – some have been for positions we’ve posted, and some are unsolicited. Do we have to keep all of these resumes, and if so, how long do we need to keep the resumes and applications?

HR Answer:

First, let’s address what to do with unsolicited resumes. You are not obligated to store unsolicited resumes; however, it is important to be consistent with your approach. If there are any unsolicited resumes that you have kept for further consideration, your best approach is to keep all unsolicited resumes for the same duration of time that you retain your solicited resumes.

For resumes and applications that you have received in relation to a job opening, there are a few federal laws that require employers to retain employment applications and related documents ranging for a period of one to two years from the date of the hiring decision (the date the position was filled, not posted). Employers are responsible for following the federal laws under which they are covered as well as any contractual requirements that they may have (i.e., union contracts) that may require additional time to maintain records.

Another important item to note regarding applicant recordkeeping is that you are required to maintain not only employment applications for a position, but the entire hiring record. Hiring records could include such things as applications, resumes, screening tools and assessments, background checks, and reference checks. Anything that you use in assisting you with an employment decision is considered part of your hiring records.

Major federal laws that address employment records retention requirements include:

  • Age Discrimination in Employment Act – Requires employers to retain employment applications for one year. There is language, however, that indicates if you are aware the applicant is over age 40, you should retain it for as long as two years.
  • Americans with Disabilities Act – Requires employers to retain job applications and documents for one year. There is some variation based upon whether or not the applications are solicited or unsolicited, but the maximum retention is two years.
  • Executive Order 11246 – If you are a government contractor and have less than 150 employees or a contract of at least $150,000 you must retain these records for one year. If you have at least 150 employees or more and a contract of $150,000, you are required to keep the records for two years. If you have a resume on hand from a previous search and decide to consider it for a new position months down the road, you will need to keep that resume or application for the time required based on the last viewing of the document (i.e., 1-2 years past the fill date of the second position).

A word of caution – if there is a discrimination charge or unlawful employment practice brought against the employer, employment applications must be retained until the matter reaches a resolution. This can get tricky if someone claims discrimination because they did not get a promotion; the employer is then required to keep all the applications received for that promotion until the claim is resolved. With a lengthy lawsuit and litigation, this could be an extended amount of time.

Generally speaking, good practice is to keep resumes and applications of non-hired individuals for two years following the date the hiring process is completed for a position (i.e., from the time the new employee starts working). Remember to consult state laws in addition to federal regulations when determining how long to keep employee records.

Recordkeeping can be a daunting task, especially when you are trying to clean out old records and maintain the pertinent ones to remain compliant. Strategic HR understands your frustration and has many tried-and-trusted tips on recordkeeping – including a handy Recordkeeping Desktop Reference to help you decide what to keep and what to toss. Visit our HR Compliance & Recordkeeping Services to learn more about ways we can help you to get your employment records in order.

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What to Include in a Written Warning

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Question:

I was told that I should give a written warning to a problem employee to create documentation. What should the written warning include?

Answer:

First make sure you are following your established disciplinary policy and procedures. Do you have any steps prior to a written warning that need to take place (i.e. counseling, verbal warning, etc.)? Assuming that giving a written warning follows your typical disciplinary procedures, you’ll want to create a record of discussion and document the following:

  • Employee and Supervisor’s Name
  • Date of the written warning / disciplinary action
  • Description of the performance issue being addressed
  • Corrective action required by employee
  • Resources available to assist the employee (if applicable)
  • Consequences of not improving performance
  • Date for follow up discussion
  • Acknowledgement of the warning by employee and supervisor

A copy of this document should be placed in the employee file. Be sure to follow up on the documented date to follow through with the disciplinary procedure.

Recordkeeping is one of the more mundane tasks associated with Human Resources, but is extremely important. Keeping documentation of corrective actions, counseling sessions and performance appraisals are vital to making sure you are being consistent with your disciplinary and performance policies. Strategic HR has a great online tool that’s affordable, easily downloaded and ready for immediate use. Our Coaching and Counseling toolkit has sample policies and forms to help you with your Counseling needs. Visit our Recordkeeping page to learn more.

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Filing Employee Paperwork

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Question:

I am new to HR and there is currently no system for filing employee paperwork. Where do I even start to go through the piles?

Answer:

Once you get organized, employee documentation can actually be quite easy to maintain. To start, you will need a minimum of three files: a personnel file, a confidential medical file and a confidential, non-medical file. It is important to separate medical information from non-medical information due to HIPAA privacy requirements. Using the three folder method, each should include:

Personnel File: Applications for employment, resumes, certifications, most pre-employment and new hire paperwork (see below for exceptions), payroll information, attendance records, discipline documentation, performance evaluations, training needs, and documents relating to employment decisions (promotion, demotion, transfer, layoff, termination).

Confidential Medical File: Benefits enrollment paperwork, doctor’s excuses, FMLA or any other type of medical leave documents, disability documentation, Workers’ Compensation documents, injury reports, drug and alcohol testing, and any other form containing medical information.

Non-Medical Confidential File: Criminal or Credit Background checks, garnishments, EEO related charges or investigation documents, litigation documents, and 401k enrollment forms.

Some employers may also choose to have a separate folder for compensation or performance related matters. I-9 forms should be kept together for all employees in one binder.

Recordkeeping can be a daunting task, especially once you get behind in filing. Keeping some documents accessible, but confidential is extremely important. Strategic HR has an easy to use desktop reference to assist with managing employee documentation and record retention. Visit our HR Store page to learn more about this handy tool.