The Hiring and Firing Question and Answer Book

The Hiring and Firing Question and Answer Book

by Paul Falcone
The Hiring and Firing Question and Answer Book

The Hiring and Firing Question and Answer Book

by Paul Falcone

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Overview

"Getting the best employees on board and weeding out the worst—without getting slapped with expensive lawsuits—are two of the most crucial and difficult jobs of human resources professionals and general managers. Now there's quick, reliable information on how to do it right. Written by employment expert Paul Falcone, The Hiring and Firing Question and Answer Book contains over 100 commonly asked questions ranging from basic to sophisticated, including: * Does my company need an Affirmative Action plan? * Why should I conduct an exit interview? * How do I find the best Web sites for recruiting employees? * How do I protect my company from negligent hiring claims? * How do I terminate a long-term employee with a history of positive performance evaluations? Each question is followed by a short answer and a longer ""Tell Me More"" section, making the book perfect both as a concise overview and as a practical reference."


Product Details

ISBN-13: 9780814474129
Publisher: AMACOM
Publication date: 04/23/2006
Pages: 240
Product dimensions: 6.00(w) x 9.00(h) x 0.75(d)

About the Author

Paul Falcone is principal of the Paul Falcone Workplace Leadership Consulting, LLC, specializing in management and leadership training, executive coaching, international keynote speaking, and facilitating corporate offsite retreats. He is the former CHRO of Nickelodeon and has held senior-level HR positions with Paramount Pictures, Time Warner, and City of Hope. He has extensive experience in entertainment, healthcare/biotech, and financial services, including in international, nonprofit, and union environments.

Paul is the author of a number of books, many of which have been ranked as #1 Amazon bestsellers in the categories of human resources management, business and organizational learning, labor and employment law, business mentoring and coaching, business conflict resolution and mediation, communication in management, and business decision-making and problem-solving. His books have been translated into Chinese, Korean, Vietnamese, Indonesian, and Turkish.

Paul is a certified executive coach through the Marshall Goldsmith Stakeholder Centered Coaching program, a long-term columnist for SHRM.org and HR Magazine, and an adjunct faculty member in UCLA Extension’s School of Business and Management. He is an accomplished keynote presenter, in-house trainer, and webinar facilitator in the areas of talent and performance management, leadership development, and effective leadership communication.

Read an Excerpt

The Hiring and Firing Question and Answer Book


By Paul Falcone

AMACOM Books

Copyright © 2002 Paul Falcone
All right reserved.

ISBN: 0-8144-7110-2


Chapter One

Reductions-in-Force (RIFs) and Layoffs

101. What do I need to know before laying someone off?

There are certain guidelines that you will need to follow when considering a layoff.

Specifically, you'll need to evaluate:

* The appropriate position to be impacted

* The appropriate employee to be laid off

* The legitimate reason for the reduction in force

* How long the position could remain unfilled

* What could happen if you were legally challenged for having improperly laid someone off

Tell Me More

How do you determine which employee should be separated? Remember, you can't arbitrarily select someone for a layoff simply because she is your weakest performer or because she happens to be in the position that's being eliminated. As a rule of thumb, you're obliged first to identify a position that is no longer necessary for some legitimate business reason; second, you must then identify the person in the department or unit who is least qualified to assume the remaining duties.

Once you have identified the position to be eliminated, how do you determine who is the person least qualified to assume the remaining responsibilities in the business unit? First, develop a list of all employees in that group with similar titles or responsibilities. For example, if you're looking to eliminate one of three secretarial positions in your marketing department, list all the secretaries (or people who handle secretarial duties) in that department on a sheet of paper.

Second, review the nature of the remaining work to be done after the position is eliminated. For example, if the secretarial position reporting to the vice president of marketing is being considered for elimination, document the responsibilities that will remain in the unit after the reduction in force. (Job descriptions are very helpful for such comparisons.) In this case, answering high-volume or important phone calls, coordinating travel arrangements, composing written correspondence, and developing PowerPoint graphics presentations may be the key tasks left to be done after the reduction in force.

Third, determine which of the three secretaries in marketing is the least qualified to assume those remaining duties. In essence, you'll be comparing all three employees' essential job responsibilities, skills, knowledge, and abilities. In addition, review the employees' annual performance reviews, tenure, and history of progressive discipline to create the appropriate written record. It would also make sense to review their work experience prior to joining your company so that tenure alone doesn't outweigh other considerations. Once that documented comparison has been made of the three employees who could potentially qualify to perform the remaining work, it's time to determine who is the least qualified individual.

If a company has a legitimate business reason to eliminate a position, it probably shouldn't have a need to re-create that position in the near future. In other words, don't eliminate a position you think might be needed in the future. If a company re-creates or reopens a position shortly after a layoff, it will be hard pressed to prove that the layoff wasn't a termination in disguise.

102. Can I lay off a substandard job performer rather than terminate for cause?

Managers who want to avoid the confrontation associated with progressive discipline and termination often look to the path of least resistance - a no-fault layoff. But layoffs aren't always the easy-out solution that you may be looking for, and you're typically better off pursuing a legitimate termination for cause via progressive discipline. Why? Because managing employee performance problems via progressive discipline holds employees accountable for their actions, establishes a performance improvement plan that actively involves your company in the employee's rehabilitation, and creates a defensible written record to show that you've accorded the employee with workplace due process.

Still, many managers prefer to pursue a layoff because it lacks the ongoing confrontation associated with progressive discipline and because it appears to provide a quicker solution to ending employment. Make sure, however, that you follow the guidelines for layoffs before pursuing this option.

Tell Me More

First, keep in mind that in a layoff you eliminate positions, not people. In other words, your written records must reflect that a position is being eliminated because of a lack of work or other financial constraints, and the individual who currently fills that position will now be impacted because there's no longer a job to report to. If removing a problem performer is your goal, eliminating that individual's job may be a big mistake. After all, you'll still need to get the work done.

If, after going through all of the considerations for a layoff, you find that the individual identified for a layoff is the person you originally targeted because of her ongoing performance problems, then you may be safe to sever her employment.

If, on the other hand, the underperforming employee is arguably not the least qualified individual (on the basis of your review of all relevant criteria, including performance evaluations and other written records), then you have to lay off one of the other two secretaries. Of course, that means that a layoff is no longer a viable alternative. Therefore, you have to revert to managing that individual's performance via documented progressive discipline.

But wait. There is another key consideration when determining whether a layoff is the appropriate employer action when dealing with underperforming employees. You've also got to keep in mind that courts and juries have certain expectations about employers' responsibilities when eliminating positions and laying off workers. The logic is simply this: If a company has a legitimate business reason to eliminate a position, it probably shouldn't have a need to re-create that position in the near future. If the company re-creates the position soon after eliminating it, a judge or jury might conclude that the company's original action was only a pretext. In other words, the court could be persuaded that the so-called layoff was really a termination for cause in disguise. This could obviously damage the company's credibility during litigation.

How long does the position need to remain unfilled? That depends on your state's statute of limitations on unlawful employment practices. In many states, an ex-employee may file a complaint up to one year from the date that the unlawful practice occurred. Therefore, it's typically safest to wait at least twelve months before filling a position that was previously eliminated.

What if you are willing to gamble and fill the position after, say, six months? Well, if the ex-employee learns that her previous position has been filled and she engages the services of a plaintiff attorney to pursue the matter, then the damages sought will be similar to those in a wrongful termination or unlawful discrimination claim. If you are held to a for-cause standard of termination, you may be burdened with providing documentation to show that you had reason to terminate the employee because of substandard job performance, inappropriate workplace conduct, or excessive absenteeism.

As is typically the case with layoffs, though, employers aren't prepared to show proof via progressive discipline that performance was a problem. As a result, an out-of-court settlement will probably need to be reached. Damages could include reimbursement for lost wages, compensation for emotional distress, plaintiff attorneys' fees, and, in egregious cases of employer misconduct, punitive damages.

Therefore, layoffs should be implemented only when position eliminations are inevitable because of a lack of work or other financial considerations. Because of their complications and limitations, they should not be used as an alternative to dealing with individual performance problems.

103. How do I select who should be let go?

Let's assume that you've been instructed to reduce your budget via position eliminations. You'll have to create a written record to show that you've evaluated all the employees in a given area in order to identify the worker least qualified to assume the remaining job responsibilities. It makes sense to do this because plaintiff attorneys may argue that, even in a nonunion environment, you have an obligation to accord "bumping" privileges to more senior employees.

In other words, simply arguing that "John Doe had to go" because he filled a particular position that was eliminated may not stand up to legal scrutiny. Instead, you'll be challenged by a higher standard: "Why did you let my client, John Doe, go, even though there were other less qualified employees, with less seniority, on your staff?"

Here's a suggestion for preparing for such a legal challenge: Employ the "comparison template" found in Appendix Y for all the employees in the same classification and document that these records were reviewed before any action was taken. This way, should you later be challenged, you'll be able to demonstrate the criteria you used in selecting the employee least qualified to assume the remaining job duties after the position elimination.

Also, when conducting a layoff analysis (but before any layoff decisions are made), you should prepare "before and after" statistical reports on your workforce. This statistical analysis will help you determine whether the selection criteria used might result in a statistically significant impact on a protected group, such as minorities, women, or employees over forty. If the analysis reveals a potential adverse impact, then you will need to use different selection criteria or select different individuals. Once the selection criteria produce an acceptable result, the reports supporting that conclusion should be retained for five years.

Tell Me More

When it comes to selection for downsizing, it's critical that your company be consistent in the application of its own rules and past practices. Most companies apply multiple criteria when looking at job eliminations. These criteria include but are not limited to:

* Seniority-based selection: With many union contracts, the employees with the least seniority are the first to lose their positions in a layoff. Using only this selection method may limit your organization's discretion in keeping top performers because "time on payroll" is the only consideration.

* Employee status-based selection: An excellent strategy to begin your company's downsizing efforts. Using this methodology, part-time or temporary workers are laid off first to ensure greater security for full-time, regular employees. Unfortunately, this method alone may not suffice to help you reach your downsizing goals.

* Merit-based selection: As documented in the template in Appendix Y, the merit-based model provides companies with the most discretion because of its inclusive nature. Employees' performance track records, attendance history, education, progression through the ranks at your company, prior employment experience, and progressive discipline are all considered in addition to seniority when decisions are being made about layoffs.

All in all, merit-based selection is the method of choice for most companies. Applied consistently in all layoff situations, it will provide you with prelayoff written records that demonstrate that you objectively selected those individuals for layoff who were the least qualified to help your company succeed. Should a postlayoff legal challenge ensue, your RIF documentation will help you demonstrate your fairness and consistency in separating employees primarily on the basis of performance criteria.

104. What do I need to consider when there are union contract "bumping" provisions?

Most collective bargaining agreements provide "bumping" privileges for union members. Since unionism rewards seniority equally with individual performance, these bumping rights allow more senior members to displace less tenured members of the bargaining unit.

Let's say, for example, that a Clerical Specialist II position is being eliminated in a hospital's radiation oncology department. If Mary Jones is the Clerical Specialist II in radiation oncology, then Mary's position will be eliminated. However, Mary may not be the individual laid off. Instead, a Clerical Specialist II with less seniority elsewhere in the hospital may be laid off. Here's why: Many collective bargaining agreements include bumping language (see Appendix Z for a sample).

There are obviously a lot of clauses that need due consideration when determining which union employees should be laid off (e.g., inside or outside the department, in the same or lower classification). What's important to remember, though, is to document your systematic efforts at determining which employees should be laid off whenever a position is eliminated.

Tell Me More

Employers attempt to retain the maximum discretion in the layoff and bumping processes by including language regarding performance, attendance, and discipline. The trouble for most companies, though, is that skills, knowledge, and abilities are not easily measured or documented. That's why it's so important, especially in a union environment, to avoid inflating performance evaluation grades and to ensure that disciplinary actions are documented. Without those written records, your company will have a difficult time relying on this kind of contract language to lay off substandard performers and to retain the best talent.

In addition, the most effective way to create a complete written record of who gets to stay and who gets bumped is to list all the names of employees in the particular classification affected (in this example, all Clerical Specialist II's) in terms of seniority. The most recently hired Clerical Specialist II on the list will most likely be the one to get laid off.

However, you have to remember to match apples to apples: If the person with the least seniority has specific skills that the "bumping" employee does not possess, or if he or she works the graveyard shift and the "bumping" employee doesn't want such a shift, then you shouldn't lay off the person with the least seniority. Instead, you'll scratch that person's name off the list with a note stating why he won't be the one chosen for layoff. You'll then go up the list to the next individual with the least seniority and evaluate that person for layoff.

You'll continue going up the list until an individual in the particular classification is selected. If there is no individual with less seniority in that classification, then you may look at a lower classification inside or outside the department (depending on the instructions in the contract).

Continues...


Excerpted from The Hiring and Firing Question and Answer Book by Paul Falcone Copyright © 2002 by Paul Falcone. Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

Table of Contents

"Part I: Hiring

1. Common Questions about the Hiring Process

2. Recruitment Tools

3. Online Recruitment

4. Interviewing

5. Making the Final Selection

Part II: Firing

6. Common Questions about the Performance Management and Termination Process

7. Progressive Discipline

8. Terminations for Cause and Summary Offenses

9. Reductions in Force and Layoffs

Appendixes

Glossary

Resources

NOTE: The book includes 111 questions and answers."

What People are Saying About This

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Dallas Morning News: "Paul Falcone’s book is sure to be viewed as a godsend by people who deal with hiring and firing."

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