The last thing any employer wants when terminating an employee is to have that termination lead to costly, time-consuming litigation. Accordingly, it is worth the time and effort for employers to familiarize themselves with best practices for reducing risk when terminating employees. To ensure clean terminations, employers may want to consider the following practices.

Documentation is key

One of the simplest ways to minimize risk when making any employment-related decision is to document the reasons underlying the decision. In the context of termination, employers should ensure that the termination decision itself, as well as any performance-related issues, company-wide economic considerations, or other related concerns are documented. Such documentation should be done in an objective manner, in real time, and should become part of that employee’s personnel file.

One method for ensuring that documentation is created for all relevant personnel events is to establish a practice of following up with the relevant parties via email to summarize the contents of in-person meetings. Another beneficial practice is to regularly conduct and document performance reviews for all employees.

By maintaining comprehensive and regular documentation, employers can spare themselves the “he said, she said” game in the event of potential litigation. Even if termination is not being considered, consistent documentation practices can provide benefits, such as allowing new managers or supervisors to quickly learn the history of their team.

Implement progressive practices

Employers understandably want talented and skilled employees. As such, it can be incredibly tempting to immediately separate from any employee who is perceived to be a “bad apple.” What many employers fail to recognize is that taking immediate and permanent action can result in increased costs and decreased employee trust in the business.

Instead, employers should use a progressive discipline model where the severity of discipline increases incrementally and uniformly with each incident of misconduct or poor performance. A transparent progressive discipline process is beneficial for both employees and employers.

For employees, progressive discipline provides clear expectations regarding performance and opportunities to resolve identified issues. Clearly communicating and enforcing a progressive discipline policy gives the employer an opportunity to forgive mistakes and help an employee grow in their role, which increases employee trust in their employer.

For employers, progressive discipline substantially reduces the risk of litigation from a termination. Progressive discipline puts an employee on notice that they are not meeting expectations and gives the employer opportunities to document the employee’s progress toward improving their performance. If performance has still not improved at the end of the progressive discipline process, the employer will have written evidence that the employee had multiple opportunities to improve, and sufficient documentation to rebut any claims that the basis for the termination was unlawful.

Look out for red flags

Employers should ensure that anyone involved in the decision to hire or fire employees does not make employment decisions based upon protected activity, protected class, or a protected status. If an employer cannot readily prove that the termination decision was based solely on reasons unrelated to an individual’s protected class or activity, even when the connection is inadvertent, the risk for litigation increases.

For example, a termination decision made soon after an employee gives notice of the need for protected leave could give rise to an inference of discrimination or retaliation and land the employer in the witness seat. Accordingly, employers should establish a process for reviewing termination decisions to ensure that protected activity and statuses are not implicated.

Documentation comes into play here, too. If an employee’s personnel file demonstrates that sufficient, lawful reasons exist to terminate the employee, it will be easier to rebut a claim of discrimination or retaliation.

Set or review final paycheck policies

Oregon law requires that terminated employees receive their final paycheck for “all wages earned and unpaid” at the time of termination by the end of the following business day. (Final paycheck deadlines differ when the employee unilaterally ends the employment relationship.) Failure to abide by this requirement could result in additional, costly penalties.

When issuing final paychecks, it is in the best interest of employers to establish and follow a written policy regarding whether accrued but unused sick time and vacation pay will be cashed out. Cashing out for unused sick time is not necessarily required unless the employer has a policy or practice of doing so. However, accrued but unused vacation time likely must be cashed out with a final paycheck unless the employer has a written policy stating that vacation time will not be cashed out at termination. To avoid disputes about final paychecks, employers should establish and follow a clearly written policy regarding whether these benefits will be cashed out when the employment relationship ends.

Takeaways

This is by no means an exhaustive list of all the ways that an employer can mitigate risk when reducing its workforce. Preemptive policies and practices can help ensure that all reasonable steps are taken to ensure that terminations are conducted lawfully and carefully. Offering severance in exchange for a release of claims can also provide additional protection from future litigation, as can consulting with employment counsel prior to effectuating a termination. Above all, employers should remember to document all events relating to a termination to ensure that, even if litigation arises, reliable evidence is available to show that the termination was lawful.

Ashley Korkeakoski-Sears is an attorney with Barran Liebman LLP. She advises and represents employers on a wide range of workplace issues. Contact her at 503-276-2132 or asears@barran.com.

Lex Shvartsmann is a law clerk with Barran Liebman LLP. She partners with attorneys in client trainings, legal research, and drafts of employment policies and handbooks. Contact her at 503-276-2111 or lshvartsmann@barran.com.

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the authors and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither author nor the 91��Ƶ guarantees the accuracy or completeness of any information published herein.

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Believe it or not, the holiday season is almost upon us, along with an increase in employee requests for time off. To ensure a smooth start to the new year, now is the time for employers to brush up on their knowledge of holiday pay and vacation benefit requirements.

Pay requirements under state and federal laws

Private employers may be surprised to learn that Oregon, Washington, and federal laws generally do not require paid or unpaid holiday leave for nonexempt employees. Nor are private employers generally required to compensate those employees who work on holidays at a premium rate. Some exceptions may apply for contractors and subcontractors working on federally funded projects.

However, when reviewing holiday policies, employers should remember that they must honor any established policy or agreement relating to the payment of benefits. For example, if an employer has a policy of paid leave for certain holidays, then the policy governs, and the employer must provide paid leave for those holidays.

Considerations for unionized workplaces

Although private employers are not required to provide holiday pay and vacation benefits in ordinary circumstances, they may be obligated to consider these benefits under the National Labor Relations Act.

Employers with unionized workplaces are subject to mandatory subjects of collective bargaining, including those that directly affect wages, hours, and other terms and conditions of employment. Accordingly, holiday pay and vacation benefits will be points of discussion when forming a collective bargaining agreement. See NLRB v. Century Cement Mfg. Co. (1953). If a collective bargaining agreement includes provisions regarding holiday pay and vacation benefits, employers are required to abide by that agreement, even if providing such benefits is not required by law.

General employment considerations

Regardless of an employer’s holiday pay and vacation benefits policies, there are several employment issues to consider during the holiday season.

First, employers that anticipate the holiday season will be a particularly busy time should monitor nonexempt employees’ hours to ensure they are compensated at the proper rate. Although premium pay is not required for employees working on holidays, a nonexempt employee whose work week exceeds 40 hours must still be paid overtime for each hour worked above that threshold. Employers should note that under the Fair Labor Standards Act, only hours “actually worked” count toward the 40-hour threshold. If an employer has a policy that provides paid leave for a holiday, or if an employee uses paid time off (PTO) on a holiday, the policy should highlight that those hours do not count for purposes of calculating overtime for that work week.

Second, employers should consider implementing and reminding employees of absence policies and procedures. During the holiday season employers may see an increase in the number of employees requesting an absence. Reminding employees of their responsibilities regarding absences and the employer’s expectations can be a useful tool to combat such actions.

Third, employers may benefit from implementing or reminding employees of procedures for submitting holiday vacation requests. This may include highlighting any established timelines for submitting holiday vacation requests, who requests should be submitted to, and whether employees who receive PTO benefits are required to use PTO for their absences.

Federal antidiscrimination considerations

Title VII of the Civil Rights Act of 1964, which applies to employers with 15 or more employees, requires that employers make reasonable accommodations for employees’ religious observances. Oregon law has the same requirement, but it applies to any employer with at least one employee. Employers should ensure they have adequate procedures in place for employees to request religious accommodations to participate in religious celebrations during the holidays. In this context, an accommodation could look like creating an alternative work schedule for the employee or permitting the employee to use PTO. Employers should keep in mind that, generally, they may deny such accommodations only when an undue hardship to the employer would result.

When employers do not provide time off for holidays celebrated by multiple employees, it is important to maintain a neutral system for determining which employees are accommodated to ensure nondiscriminatory practices. Employers might consider adopting a policy that outlines this neutral system to ensure that employees are apprised of the process for determining whose requests will be granted.

Takeaways

Unless employers currently have a policy or practice of providing paid holiday and vacation time to employees, private employers are generally not required to provide employees with holiday and vacation benefits. When choosing not to provide such benefits, employers should make sure to abide by neutral policies for providing religious accommodations to those who wish to not work on holidays, and employers should ensure that employees are properly compensated for their time. Employers that choose to implement holiday pay and vacation benefits should understand that their policies govern the relationship with their employees and should make evident any changes in such policies.

Ashley Korkeakoski-Sears is an attorney with Barran Liebman LLP. She advises and represents employers on a wide range of workplace issues. Contact her at 503-276-2132 or asears@barran.com.

Lex Shvartsmann is a law clerk with Barran Liebman LLP. She partners with attorneys in client trainings, legal research, and drafts of employment policies and handbooks. Contact her at 503-276-2111 or lshvartsmann@barran.com.

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the authors and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither author nor the 91��Ƶ guarantees the accuracy or completeness of any information published herein.

The post ’Tis the season: need-to-know info about holiday compensation | Opinion appeared first on Daily Journal of Commerce.