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    Act Within the Legal Framework for All Personnel Matters

    Know the legal framework you must act within. Although Wisconsin is an employment-at-will state, there are still a number of laws that affect what you can do and especially what you should or should not say. Especially avoid comments that could be interpreted as discriminatory under the equal employment opportunity laws.

    Robert Gregg

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    Wisconsin LawyerWisconsin Lawyer
    Vol. 81, No. 2, February 2008

    Act Within the Legal Framework for All Personnel Matters

    by Robert E. Gregg

    Know the legal framework you must act within. Although Wisconsin is an employment-at-will state, there are still a number of laws that affect what you can do and especially what you should or should not say. Especially avoid comments that could be interpreted as discriminatory under the equal employment opportunity laws. Have you done anything to eliminate at-will employment, for example with handbook provisions, or created an employment contract in a hiring letter? If you have, then you may have to show more documentation before discharge (that is, establishing the nine elements of just cause).

    Robert E. Gregg

    Robert E. Gregg, W. Virginia Univ. 1978, is a partner in Boardman, Suhr, Curry & Field LLP, Madison, practicing in employment law. In addition to litigation, a major emphasis of his practice is consulting to analyze work places, develop policies and procedures, and resolve employment problems before they generate legal action. He formerly was the chief equal rights officer for the Wisconsin Personnel Commission.

    Communicate and document. Termination should never be a surprise. Employees should know the standards and expectations, so they can shoot for the target. Let employees know how they are doing. Use a performance improvement plan that details issues of concern; periodically provide written feedback on overall performance and immediate written feedback on any significant errors (but don't be picky on every little thing - it looks unfair in the aftermath). When any material error is repeated after verbal criticism, you should start written documentation. The written feedback does not have to be harsh; it can be a simple e-mail or memo reminder, and it should be presented in the spirit of correction. It must be clear. And sooner or later, give warning that employment can be terminated.

    Describe facts - don't label the person. Focus on the work behaviors, not on your frustration about the employee's personality. Labels such as "incompetent," "bad attitude," lazy," and "dumb" just create animosity. Use of some of them can get you sued. Scripting and editing what you will say before confronting the employee will help ensure that you are describing facts and not labeling the person. Scripts help you focus on correcting performance instead of venting supervisory frustration.

    Listen to the employee. You may find that other factors in your business affect the employee's performance. Personal situations, especially disabilities, may require consideration or accommodation that may help the employee improve his or her performance. Finally, listening to the person's concerns, reasons, or excuses makes you forewarned and forearmed to defend any challenge to discharge. You can cover those bases before discharge, and be prepared to meet them later.

    Treat employees consistently and equally. Before discharging the problem employee, review other employees' records to ensure nondiscrimination. Is there anyone else who is similarly situated in performance, but has been overlooked, or is liked better, and doesn't stand out as much in the eyes of management? That inequality can garner liability.




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