September 2016
Welcome to the September HR Advisor newsletter. This month we have an article that tackles the increasingly common issue of political discussions in the workplace. We also walk you through the basics of progressive discipline and give you a reminder about upcoming EEO-1 reporting.
HR Alerts
Reminder: EEO-1 Report Due September 30
The Equal Employment Opportunity Commission (EEOC) requires certain companies to submit a report categorizing their employees by race or ethnicity, gender, and job category. This demographic survey, called the EEO-1, is due by September 30, 2016. A company is required to file the report if it meets one or more of the following criteria:
Employs 100 or more employees; or
Employs fewer than 100 employees if the company is owned by or affiliated with another company and the entire enterprise employs a total of 100 or more employees; or
Is a federal government prime contractor or first-tier subcontractor with 50 or more employees and a contract or subcontract amounting to $50,000 or more; or
Serves as a depository of government funds in any amount; or
Is a financial institution which is an issuing and paying agent for U.S. Savings Bonds and Notes.
If required to file the report, here are some things to keep in mind:
The EEOC would prefer online filings.
Single-establishment companies (one office location) are required to submit only one EEO-1 data report. Multi-establishment companies are required to submit a separate report for each location of your company.
Employees must be given the opportunity to self-identify their ethnicity. If they refuse to self-identify, then use employment records or visual observation.
Pull employment data from one pay period in July, August, or September.
Include both full-time and part-time employees.
Include employees who work from home or telecommute in the survey for the location to which they report (not where they live).
Do not include applicant data.
Be sure to click the “certify report” button—if you don’t, the EEOC will not receive the report!
Proposed Revisions Still Pending
Last February, we informed you of a proposed change to the annual EEO-1 report, which would require that employers with more than 100 employees report pay data in addition to the information they currently provide on race, ethnicity, sex, and job category. The proposed rule was published and went through a comment period, but a final rule has not yet been announced.
If a final rule is published that matches the proposed rule, private employers and federal contractors with over 100 employees would be required to submit data on employees’ W-2 earnings and hours worked. Federal contractors with 50-99 employees would continue to report on race or ethnicity and sex by job category, but would not report earnings data; private employers with fewer than 100 employees would continue to be exempt from EEO-1 reporting.
We will keep you updated on any developments as we learn of them.
Why You Should Consider Progressive Discipline Before Termination
Terminating employment always comes with risk, even when it’s done for good cause. You can reduce this risk by using progressive discipline. As its name suggests, progressive discipline involves a progression of disciplinary actions with escalating consequences. When used to give employees with behavioral or performance problems time and opportunity to improve, it demonstrates good faith. And if the process results in termination, you can show the termination was for cause.
How Progressive Discipline Works
Progressive discipline generally begins with a conversation. This initial conversation is meant to nip any poor behavior in the bud. Often this conversation will be part of your regular coaching or check-ins with the employee, and some HR professionals view this as a step before actual progressive discipline. You make the employee aware of their unsatisfactory behavior or performance, make your expectations clear, give them any guidance or tools available to help them succeed, and allow them to bring their concerns to your attention.
If the employee fails to improve after coaching, the next step generally is to give them a verbal warning and let them know additional discipline may follow if they don’t improve.
The next escalation is usually a written warning, signed off on by the employee. This is also the point at which you may want to consider a Performance Improvement Plan (PIP), which is essentially a formalized action plan for employee improvement. A PIP is typically at least 60 days, has commitments from both the employee and management, and contains realistic, attainable goals. PIPs generally make more sense in situations where an employee is having performance issues rather than behavioral issues; for instance, giving an otherwise good employee 90 days to improve their typing skills makes sense, whereas giving someone even 30 days to stop sexually harassing their co-worker does not. Whether you give a simple written warning or implement a PIP, make sure you are perfectly clear as to what will happen should they fail to improve or modify their behavior.
If the problem isn’t resolved after a written warning or PIP, stay true to your word and proceed to the next step, whether that is another written warning, a final written warning, suspension, or termination.
Some Tips for Using Progressive Discipline
First and foremost, implement progressive discipline as a general guideline for managers, not as a policy that has to be followed in every case. Your employee handbook should have a policy that puts employees on notice that poor performance or bad behavior will lead to discipline, but it should not lay out a specific escalation process. If you tell employees that they’ll be subject to a certain set of steps or entitled to a certain process, they can hold you to that policy later and claim they’ve been discriminated against if they don’t receive the benefit of each step in the process. And there are of course occasions in which progressive discipline should not be used. Violence or threats of violence, for example, often merit immediate termination following an expedient investigation.
Second, it’s imperative that you document everything throughout the progressive discipline process. Even a verbal warning should be noted in the employee’s personnel file. If something isn’t in writing, it might as well not have happened.
Third, whenever possible (and practical) have another person in the room for these conversations. Having an HR representative or other manager present to witness disciplinary actions will reduce your risk if an employee later claims the conversation went down differently than it did.
Fourth, stick to facts. You’re disciplining an employee because they’ve done something wrong or poorly. Focusing on the facts of the case provides the employee with a clear path going forward and protects you if the employee later challenges you on any of the steps of the process.
Finally, be compassionate, but not apologetic, particularly if you’ve reached the point of termination. If you’ve followed your internal progressive discipline policy and the employee has failed to improve, the employee shouldn’t be surprised if termination occurs.
Question & Answer
Q: Can we reduce an employee’s hours as a disciplinary measure?
A: We do not recommend reducing hours as a disciplinary measure, as it does not directly address the performance or behavioral issue that the employee is having. Unless reducing hours is already a common practice in your workplace, it could be challenged on the basis of fairness, consistency with your policy, or discrimination. For example, if no other employees have had a reduction in hours for disciplinary reasons, this employee could claim they’re being unfairly targeted and that the discipline was actually a result of their inclusion in a protected class (e.g., if the employee is over 40 years old or practices a particular religion).
Instead, we advise that you follow a progressive disciplinary process and put the employee on a performance improvement plan (PIP), addressing poor performance and behavioral issues as soon as they arise. In this case, we recommend that you meet with the employee to discuss the performance and behavioral problems, and document your expectations going forward. Treating the employee consistently with your policy and documenting the steps of the disciplinary/PIP process will be useful if any of your decisions are later challenged by an employee claim.
Political Discussions in the Workplace
This election season has given us generous helpings of drama, and the general election itself is only two months away. With the final stretch before the candidates—and us—you’ll no doubt overhear political small talk in the office. Maybe even a heated argument or two!
While a respectful debate over lunch or a brief remark tossed over a cubicle may not merit a response from management, what happens when political arguments at work turn ugly? Raised voices can disrupt operations. Feelings can be hurt. Team cohesion can suffer. Employees with political differences might refuse to get along. There are even potential legal issues: a political debate about a protected class can devolve into a hostile work environment.
These serious matters don’t have a universal solution. Different employers have different needs and unique cultures. Some employers may want to restrict all non-work-related discussions in the workplace. Others may want a more lenient policy and choose to deal with violations when someone crosses the line.
Whatever approach you take, be careful not to give the impression that you’re trying to regulate the political beliefs of your employees. Generally speaking, a private employer can limit political expression in the workplace—as long as they don’t violate Section 7 rights or applicable state laws. Section 7 of the National Labor Relations Act gives employees the right to talk about the terms and conditions of their employment and the right to unionize. While this law protects some political activities, it doesn’t give employees the right to discuss politics that aren’t work-related during work hours or while on their employer’s property.
Some political discussions are work-related, however. For example, you wouldn’t want to try to stop employees from talking about their pay in light of gender pay equality laws or from building support in the workplace for a paid sick leave policy. You’d also want to avoid restricting any discussions of unions or unionization. Finally, you don’t want to restrict off-duty political activity.
The trouble with heated political discussions is not that they’re political, but that they’re disruptive and potentially abusive. So if you have no objection to employees occasionally engaging in non-work-related discussions while they’re on duty, then you may want to allow political discussions generally while prohibiting behaviors that are disruptive or abusive. Just make it clear to employees that they’ll be disciplined for not working when they should be, or for disrupting the work of others or for harassing them—not for holding certain political beliefs.
