Terminating Unsafe Employees

Presented by Mary E. WrightOgletree, Deakins, Nash, Smoak &

Stewart, PC415.536-3431 [email protected]

Terminating Unsafe Employees

Employer’s Duty To maintain & provide:A safe working environment.Safe systems of work.Facilities for the welfare of all workers.Any information, instruction, training or supervision needed to ensure workers safety.

Identify HazardsA hazard is anything with potential to cause injury, illness or damage.

Identified by:Observing Workers Tasks.Speaking to Workers.Using Safety Checklist.Review Manufacturers Info.View injury Records.

Assess the RiskA risk is the likelihood of a hazard causing injury, illness or damage to health.

Assessed by:

Potential Impact of hazard.

How likely is the hazard to cause someone harm.

Reduce RiskAim to remove a hazard completely. If this is not possible a ‘hierarchy of control’ exist.

Eliminate the HazardSubstitute the Hazard. Isolate the Hazard.Use Engineering Controls.Use Administrative Controls (policies/procedures/training).Use Personal Protective Equipment.

Employee’s Duty

Ensuring own personal health & safety, and that of others in the workplace.

Complying with any reasonable directions given by management relating to health & safety.

Meet Jack The Accident Prone

Employee

Jack Is Lazy.Jack Is Oblivious._______________Jack Thinks He Knows Better.Jack Is Angry.

What’s the Price for Not Knowing Jack?•U.S. Department of Labor's OSHA proposes $138,500 in penalties against Cullman, Ala., metal fabricator for 31 safety and health violations

•U.S. Department of Labor's OSHA proposes $65,450 in penalties for American Air Specialists of Mississippi for willful and serious safety violations

•U.S. Department of Labor's OSHA fines Texas Linen Co. more than $149,000 for alleged safety and health violations

•Broome County, N.Y., manufacturer faces additional fines exceeding $109,000 from U.S. Labor Department's OSHA for recurring and uncorrected hazards

•Human Toll: The Life, Health and Well-Being of Employees and Community•Reality Check: Low Morale, Job Loss, Bad Publicity, Consumer Backlash

Creating a Defense

“Unpreventable Employee Misconduct”

A violation of OSHA Regulations occurs.DOSH audits your company.No fine against the company if it can prove that the violation was the result of unpreventable employee misconduct.

DOSH Directive 5.10

No citation may be issued under this section if there is unpreventable employee misconduct that led to the violation, but the employer must show the existence of:(i)A thorough safety program, including work rules, training and equipment designed to prevent the violation.(ii)Adequate communication of these rules to employees;(iii)Steps to discover and correct violations of its safety rules; and(iv)Effective enforcement of its safety program as written in practice and not just in theory.

(copy of directive attached to handout)

How to Discipline Jack

and Support a Defense

ObserveReportInvestigateDisciplineTerminate

Observe

Human Resources is Responsible For:

Supervisors* are Responsible For:

(*after consulting HR)

Safety Wardens, Supervisors or HR are Responsible For:

REPORT

Accident, Incident and Near Miss

Accident: an undesired event or sequence of events causing injury, ill health or property damage.

Near Miss: an incident, where given a slight shift in time or distance, injury, ill-health or damage easily could have occurred but did not this time.

Incident: an unplanned, undesired event that hinders completion of a task and may cause injury or other damage.

Policy and Procedure

Any accident, incident or “near miss,” no matter how slight the injury or damage, must be reported to the department supervisor, safety warden or human resources representative for immediate action.

The supervisor or safety warden is responsible for taking appropriate follow-up action, including getting medical attention, completing an investigation report and recommending or implementing appropriate corrective action.

FIRST REPORT OF ACCIDENT, INCIDENT OR NEAR

MISSDepartmentDateName of EmployeeName of Departmental SupervisorNature of Occurrence (A-I-NM)Why a Near Miss?Did an injury, illness or property damage

occur?Any emergency action taken?Name of reporter.

PURPOSETo help identify the causes of an incident,

accident or near miss.To prevent similar occurrence in the future.To initiate documentation of disciplinary

action.To support required report to governmental

agency.One person’s actions can

jeopardize the safety of others in the workplace.

Investigate

Goals of A-I-NM Investigations

Purpose of A-I-NM Investigations

The Investigation Procedure

Be a Journalist Not a Columnist

WhoWhatWhen

WhereWhyHow

Accident Investigation Name of Injured

Employee Date of Accident Investigator’s name Date of Investigation Job Title Time of Accident Department Location of Accident Name of Witnesses Description of Accident Task Being Performed Equipment, Tools,

Personal Protective Equipment, Procedures Being Used

Description of Injury or Illness (accident type, injury type and body part)

Contributing Factors Description of Work Area Injured Employee’s

Account Witness’ Account (Name,

Title, address, phone number)

Basic causes Corrective measures

immediately implemented

Corrective measures to be implemented to prevent recurrence

Discipline

Disciplinary Program

A disciplinary program can be developed with t he assistance of the personnel department and your company’s counsel. The program can be effective for addressing “repeat offenders” who often account for a high percentage of accidents, incidents and near misses.

The nature of the disciplinary action should be in line with such factors as:

Getting Back to Jack Hypothetical 1: Jack is Lazy

Acme manufactures paper products. Huge paper rolls are transferred from the manufacturing floor to the storage room by forklift. There is a lot of noise and significant levels of activity on the manufacturing floor. Employees who are not scheduled to work are not supposed to be on the floor.

The manufacturing floor is set between the canteen and the break room. It is quicker to cut across the floor to get from the canteen to the break room (as opposed to walking around the outside of the building). Jack frequently cuts back and forth across the manufacturing floor on his break. Forklift drivers complain.

Can the supervisor write Jack up for a safety violation?

Hypothetical 2: Jack is Oblivious

Jack attends safety training at Acme. He knows the rules but believes that they do not apply to him. One day, Jack is working by himself checking inventory in the loading dock. He figures it is alright to wear ear buds and listen to music even though he knows such devices are forbidden in the workplace. Jack does not hear the shift change buzzer and does not realize that forklift operators are now removing product from pallets stacked overhead. A pallet falls to the ground next to Jack.

The supervisor sees this and pulls Jack off the floor. He wants to write the forklift operator up for the damage to the pallet. Can he write Jack up, too?

Terminate

Hypothetical 3: Jack Thinks He Knows Better.

Jack has accumulated years of seniority and been through countless safety sessions. Acme operates a drill press. While helping an associate attach a pipe to one of the presses, rather than walk around the machine, Jack stretches across the machine's conveyor belt, which interrupts an infrared beam and causes two probes to descend. The probes pin Jack’s colleague to the conveyor belt, causing non-life threatening injury.

Management wants to fire Jack. Can they do so?

Handbook, Contract and Precedent

What does Acme’s handbook say?

What does Jack’s contract say?

Is Acme a union shop?

What does Acme usually do?

PROGRESSIVE DISCIPLINE

Typical Progression:First Offense: counseling, retraining and/or written warning

Second Offense: suspension

Third Offense: Dismissal

Hypothetical 4: Jack Is Angry.

Jack was denied a promotion. He is resentful and angry. Jack, thinking only to cause a brief work stoppage, removes a nut here, a belt there from his machine. Finally the machine overheats and fills the work area with non-toxic fumes. The building is evacuated and the fire department determines the cause. A co-worker comes forward to report having seen Jack remove the hardware from his machine.

Management writes up the witness for not reporting the conduct in time to prevent the property damage, but they want to fire Jack. Can they do so?

7. Return Property: Ask for all access cards, keys,

blackberry, cell phone, laptops, computer disks, projectors or other media equipment, tools,

safety equipment, etc. If applicable, remind the employee

of their execution of a confidentiality or proprietary

information agreement regarding the company, its

clients and its work products. Ask the employee if they have

any documents stored electronically on their home computers. If so, arrange to

have the information retrieved. 

8. Should you cut off access to the company’s computer network? Have

Acme's information technology staff cut off the employee’s

access to e-mail and the company’s network. This prevents sabotage and/or

downloading of proprietary or otherwise sensitive work

product.  

9. Good-byes. There is a “split of opinion” as to whether you allow someone to circulate

around saying good-bye. Employees should not be

permitted to circulate amongst employees unsupervised.

Unless you believe there is a chance of real sabotage or that

the employee will “vent” in front of others, do not “escort them to the door.” It is highly offensive

to departing employees. I suggest that the person who

accompanies the employee to his or her office leave first and wait in the elevator lobby and, when the person comes out,

they can take the access card, and part without the specter of

the “escort.” 10. Document everything.

 a.

Acknowledgment: Ask the employee to sign an

acknowledgment of receipt of wages and vacation pay. This is

not an agreement that the amount is proper or that they

agree with the reasons for termination, but merely a verification that a certain

amount was handed to them. 

b. Memorialization: After the meeting, the two

company participants should make a factually neutral (but as complete as possible) record of what was said in the meeting by

all participants. Time passes and memory fades. You should have an accurate record to refer back to if need be. Do not put

the memoranda in the employee’s personnel file. Mark it “CONFIDENTIAL: PREPARED

AT THE REQUEST OF COUNSEL,” and give it to HR for storage in a

confidential file.

11. Severance. In addition to the pay- and

vacation-checks, you may wish to provide severance pay. This

should be given only in exchange for a release of

claims. Please note: you cannot obtain a release of employment

claims in exchange for the employee’s final check or accrued vacation pay. An

employee is already entitled to that, no strings attached, at her termination. You must pay extra

for a release of claims, otherwise it is not enforceable.

 Please remember, if you

are going to seek a release from an employee who is over 40 years of age -- to require an

employee to waive his right to bring a claim for age

discrimination under the federal Age Discrimination in Employment Act or (in

California) the state Fair Employment & Housing Act, he must be granted up to 21-days to seek independent counsel

and decide whether to sign the severance letter. Following execution of the letter, the

employee has seven days to revoke his signature on the

agreement. Accordingly, if an employee is over 40 and the

company is seeking a waiver of a potential ADEA or FEHA/age

claim, severance pay should not be handed over until execution has occurred and the revocation

period has expired.Please contact me if you

have further questions.     

10-Steps to a Successful Termination

1.When should you hold the termination meeting? 2.Where should the meeting take place?3.Who should attend the meeting? 3.What to have ready when you go into the

meeting.4.What to say in the meeting.5.Returning company property.6.Packing Up the employee’s personal stuff.7.Saying Goodbye to co-workers.8.Computer Access should be terminated.9.Severance by contract or in exchange for a

release.10.Documentation of the entire process.