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www.FandPnet.com. Baltimore Easton Hagerstown Herndon Tampa Wilmington. Breaking Up is Hard to Do: Disciplining Your Problem Employees Albert B. Randall, Jr., Esq. Quality Representation, Personal Service. Handbooks. Drafting – HR Manager or Atty.? Cost-benefit analysis

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Breaking Up is Hard to Do:Disciplining Your Problem Employees

Albert B. Randall, Jr., Esq.

Quality Representation, Personal Service


  • Drafting – HR Manager or Atty.?

    • Cost-benefit analysis

    • HR Manager should draft policy

    • Atty. should review for legal compliance

    • Pre-written policies (one size does NOT fit all)

  • Plain language approach – NO LEGALESE!!

Quality Representation, Personal Service

At will employment
At-will Employment

  • Maryland standard

  • May terminate employee for any reason

    • Non-contract employees

    • Termination may not violate public policy (Adler)

  • Employers should have at-will disclaimer

    • Handbook or

    • Stand alone policy

Quality Representation, Personal Service

At will disclaimers
At-Will Disclaimers

  • Handbook may be found to be employment contract w/o disclaimer (may form implied contract)

  • Cover page in handbook

  • Large, bold typeface, conspicuous

  • Acknowledgement of receipt by employee

  • Sample language:

    • “This handbook contains the complete agreement between the company and its employees. Nothing in this handbook should be interpreted as a contract of employment. Either the company or you may terminate the employment relationship at any time and for any reason.”

Quality Representation, Personal Service

Drafting policies
Drafting Policies

  • Generally, employers are free to draft any personnel policy relevant to its business/workforce

  • No-no’s

    • Those prohibited by statute or case law

    • Those that conflict with a contract (CBA or NLRA)

    • Those that jeopardize health or safety of workforce

    • Those that conflict with public policy

  • Yes-yes’s

    • EEO policy

    • FMLA policy

Quality Representation, Personal Service

Drafting policies cont
Drafting Policies (cont.)

  • Overly broad

    • Sweeping statements in an effort to regulate as much as possible

    • Language is often vague

    • Often contain unenforceable provisions

  • Overly narrow

    • Extreme regulation of employee conduct

    • Impossible to cover everything

    • May have negative psychological impact

Quality Representation, Personal Service

Drafting policies cont1
Drafting Policies (cont.)

  • Better to draft “happy medium” policies

  • Ensure that policies are legally enforceable

  • Equally importantly, ensure that the policies are practically and uniformly enforced

    • Need to allow discretion

  • Ensure that front-line managers and supervisors are trained on policies and are held accountable for their implementation

Quality Representation, Personal Service

Policies to consider
Policies to Consider

  • FMLA (required)

  • EEO (required)

  • At-will disclaimer

  • Employee privacy/emails

  • Leave (sick, vacation, personal, military, jury, bereavement)

  • Disciplinary

  • Workplace violence

  • Substance abuse

Quality Representation, Personal Service

Policies to consider1
Policies to Consider

  • No-solicitation

  • OSHA/safety policies

  • Employee codes of conduct/dress

  • Benefits (COBRA, etc.)

  • Off-duty/moonlighting

  • Arbitration of employment disputes

    • Jury Trial Waivers/Venue Provisions

Quality Representation, Personal Service

Hiring practices
Hiring Practices

  • No unintended promises

    • Recruiting

    • Employment applications

    • Offer letters

  • No discriminatory questions

    • Disability, gender, national origin, religion

  • Up-to-date Job descriptions

Quality Representation, Personal Service


  • Three types:

    • Zero tolerance

    • Progressive

    • Hidden/reactionary

Quality Representation, Personal Service

Progressive discipline
Progressive Discipline

  • Publish the policy

    • Informs employee of expectations

  • Draft policy so that it does not contractually bind employer

    • Be wary of “shalls”, “wills”, “musts”

    • Permit discretion

    • Remind of “at-will” employment in discipline policy

  • Be intentionally vague in terms of discipline for various offenses

Quality Representation, Personal Service


  • Do supervisors maintain incident logs?

  • Have verbal warnings been documented/retained in personnel files?

  • Are copies of written warnings retained?

Quality Representation, Personal Service

Documentation cont
Documentation (cont.)

  • Verbal warning

    • Employee/supervisor’s name & date of warning

    • Reason for warning

    • Opportunity for employee to respond

    • Corrective measures

    • Statement that failure to correct will result in more serious discipline, including up to termination

Quality Representation, Personal Service

Documentation cont1
Documentation (cont.)

  • Written warning

    • Signed acknowledgement/date from employee

    • Signed/dated by supervisor

    • Include acknowledgment from employee that the failure to undertake corrective measures will result in more severe discipline

    • If employee refuses to sign, supervisor should note

Quality Representation, Personal Service

Performance appraisals
Performance Appraisals

  • Do they match the employee’s performance?

  • If not, may be difficult to discipline/terminate/prevail in litigation

Quality Representation, Personal Service

Do you investigate
Do You Investigate?

  • Does law require investigation?

  • Is there a contractual obligation to investigate?

  • Concerns for future liability?

Quality Representation, Personal Service

Choosing the investigator
Choosing the Investigator

  • Match the investigator to the situation

  • Consider training and qualifications

  • Consider nature of allegations

  • Consider second investigator for corroboration

Quality Representation, Personal Service

Principles underlying investigations
Principles Underlying Investigations

  • Fairness

  • Notice to accused

  • Opportunity to respond

  • Fundamental fairness

    • Does the result pass the “smell test?”

Quality Representation, Personal Service

Gathering information
Gathering Information

  • Consider all records, voicemail, e-mail, telephone records, computer records, photographs and security videotapes

  • Preserve originals

  • Interview witnesses

  • Maintain impartiality

  • Preserve confidentiality

  • Focused questioning

Quality Representation, Personal Service

Making the decision
Making the Decision

  • Consider suspending pending investigation before immediately terminating

  • Have you interviewed all witnesses, including accused and those witnesses identified by accused?

  • Have you followed the policy?

  • Have you acted fairly/non-discriminatorily?

  • Have you documented everything?

  • Do you have a witness at the termination meeting?

Quality Representation, Personal Service

Documenting the decision
Documenting the Decision

  • Equally important as documenting the investigation

  • Helps establish rationale behind decision

Quality Representation, Personal Service

Guarding against retaliation claims
Guarding Against Retaliation Claims

  • Retaliation claims fastest growing EEOC claim

  • Need to advise Complainants and other participants of no tolerance for retaliation

  • Follow up to ensure that no retaliation has taken place

Quality Representation, Personal Service


Albert (“Bert”) B. Randall, Jr., Esq.

Franklin & Prokopik

The B&O Building

2 N. Charles Street, Suite 600

Baltimore, MD 21201

(410) 230-3622



Baltimore MD u Easton MD u Hagerstown MD u Herndon VA u Tampa FL u Wilmington DE

Quality Representation, Personal Service