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THE ART OF HIRING AND FIRING
(Monday, June 10, 10:30- 11:30 A.M.)

DOUG CROSBY (Synopsis):

The key to avoiding wrongful discharge suits by coaches and the accompanying legal costs and negative publicity to the school lies in properly drafting a solid, comprehensive employment contract. Such a contract should go beyond the basic term of salary provisions. Specific provisions such as a reservation for discharge of the employee in the discretion of the employer, a mutual agreement to end the employment relationship upon the occurrence of some specified event, or discharge based upon objective criteria should be stated in the contract.

The provisions most favorable to the employer is a discretionary clause which allows the employer to discharge the employee if his services are not satisfactory to the employer. Under this provisions the employer is the sole judge of the sufficiency of his reasons and of the fact that such dissatisfaction exists. Further, the reasonableness of his dissatisfaction is not open to inquiry.

One must note, however, that this provision does not give the employer the power to fire upon a whim. First, the employer must specifically and affirmatively reserve the right to discharge. If the contract merely states the employee agrees to do satisfactory work and no absolute right of discharge for 4issatisfac~ tion is reserved, the right to discharge without cause is not thereby given to the employer. Secondly, the employer is bound by the restraints of good faith. If any bad faith on the part of the employer is shown, the court is sure to look outside the parameters of the contract and penalize the employer.

One caveat to this type of provision must be noted. If the discretion to discharge the coach is given solely to one person, e.g., the athletic director, then personality conflicts are bound to develop. The coach may allege personal dislike as the basis for his discharge rather than dissatisfaction with his work. A charge of bad faith can then arise, thereby nullifying the advantage the employer hoped to gain from the discretionary clause. It would be better practice to appoint a committee which has the power, acting as a group, to discharge the coach. This will minimize the chances of individual conflicts as well as make the firing decision more objective.

Another way to avoid disputes is to make the contract voidable upon the occurrence of some mutually agreed event, e.g., three losing seasons in a row, or perhaps something more within the coach's control, e.g., sanctions by the NCAA for illegal recruiting or lack of control over drug use by the players. If the event occurs, then the contract may be terminated. Either side may void the contract at their ( or the party with the power to void the contract may desire to keep the status quo and elect to wai, power to void the contract. In any event, the difficulty with this provision is at the negotiation getting both sides to agree upon the event.

Probably the best method is a combination of the previous two methods. The stated criteria in the contract avoids allegations of bad faith and puts the coach on notice of the acts which will place his j in jeopardy. And, if those acts ever arise, the employer committee has the power, but not the dut!, to fire the coach.

There are other contract law rules which are also of importance to a coach's contract. First, the! are the basic elements of any contract -consideration, mutual assent, offer, acceptance and legality. All of those elements must be present in some form for every contract. Second, is the existence of the legal concept known as the Parole Evidence Rule. Under this rule, when parties put their agreement in writing, all previous oral agreements merge in the writing and a contract as written cannot be modified changed by oral evidence in the absence of mistake or fraud. This means the court will not listen to 0] elements and theories which conflict with the terms of the writing.

As to damages, only those which arise as a consequence to the breach and are foreseeable may be recovered. Those damages must also be reasonably certain. The theory behind contract law is to make whole in the event of breach, thus punitive damages are not generally awarded. This means that if a ( is wrongfully fired in breach of his contract, then losses caused by the cancellation of a radio or ~ are probably recoverable, since they are foreseeable and reasonably definite (especially where a prodl contract has been signed). However, losses resulting from future endorsements are probably not recovE because they are too speculative.

Finally, an item of considerable importance is the coach's duty to mitigate damages caused by his employer's breach. It is clearly the law that the discharge employee may not sit idly by unemployed f( the remainder of the term and then claim full compensation; he is bound to make the best use of his tii and seek other employment. The discharged employee must use reasonable diligence to obtain other emplc of a similar or substantially the same character and grade as that from which he was discharged.

KEN KARR (Synopsis) :

I am most happy and privileged to have this opportunity to share these thoughts with you, my workers in athletic administration.

Most of us, on a daily basis, are reminded that we are responsible for, and to, from 30 to 130 I and if we are to keep those payroll checks coming in a timely fashion, our organization must consist good, honest, dedicated and motivated people.

To maintain and maximize productivity, change is inevitable, for what was adequate in '84-85 must be fine tuned for continued success in '85-86, etc. The average worker in America changes jobs every years (some of my friends have demonstrated the ability to change even more frequently than 3.6 years) This fact means that nearly 28 million of us are changing jobs.

If we include internal transfers, upgrades, promotions, and demotions, the numbers become enormoui We are a dynamic work force and termination and reemployment are predictable phenomena. The days of 41 years and a gold watch have come and gone as we approach the year 2000 AD.

There was a time when an employer had the freedom to discharge employees for a good reason, a bad reason, or no reason at all: Several state courts have adopted a theory of "wrongful discharge" and severely limited the reasons for which an employer may discharge an employee.

The most valid reasons for termination which appears to be legitimate, or non-discriminatory and acceptable in today's market place and courts are: I, cause; serious midconduct, dishonesty, unethica or dangerous behavior; 2, job elimination; RIF, economic conditions, retrenchment, merger, shut downs; 3, poor performance; incompetence, missing key goals, causing problems with others that drag down th total performance of the unit. The most important thing to remember: Make it quick, humane, and fina

Familiarize yourself with applicable federal and state laws, rules and regulations (universityaru departmental) that may be pertinent in the hiring and firing of your employees. Know the contents of handbooks, policy manuals and internal policies that imply promise of job security.

Limit your exposure: keep one principle in mind, you may have to explain to a jury what you did, you did it, and how you did it. Sanitize your employee handbooks. Educate your interviewers. Accept employment contracts unless in writing. Adopt reasonable work rules. Evaluate.

Evaluations- our challenge is to make evaluations more objective if possible. You should be able to demonstrate that the evaluation that prompted a dismissal was perfopmance related and not based on considera- tion of race, sex, ethnic origin, age or other personal bias, arbitrariness or caprice.

Court decisions support institution's authority to make determinations denying tenure, though performance may be satisfactory because of institutional program plans and needs, and/or the availability of more qualified persons.

In the conduct of my daily affairs, I spend very little time re-inventing the wheel. Many of my statements this morning are either direct quotes or paraphrases from material contained in a publication titled "Good Endings: Managing Employee Terminations" by Finnie and Sniffin, published by the College and University Personnel Association (CUPA), II Dupont Circle, Suite 120, Washington, D. C. 20036 (phone; 202/462-1038).

In conclusion, employers in some states now face much greater exposure for discharging employees than most dreamed possible just a few years ago. Juries have recently rendered verdicts of mega-bucks for a single routine dismissal. Faced with that kind of exposure, employers should do all they can to make certain that every discharge decision is very carefully made and can be justified to a jury, if necessary.

As you return to your workplace from this Convention, take some time to do an in-depth review of all personnel policies and procedures that pertain to those employees that are under your direct or indirect supervision and prepare yourself and your associates to effectively "weed your garden" if and when it becomes necessary.

Thanks for listening.

LOU MARCIANI {Synopsis) :

Successful selection is like a successful marriage; it is planned, not made in heaven.

Administrators frequently use the language of courtship and marriage, and sometimes divorce, when discussing relationship with subordinates. Recruitment entails "wooing" and "seducing" candidates, with considerable attention to what "turns them on" or "turns them off." Courtship proceeds until a golden moment occurs when a "formal proposal" is made, and the candidate either says, "I will" or rejects the offer.

Employment relationships sometimes result in pink slips, the counterpart to divorce. Asked why the regrettable relationship occurred, managers like to blame someone for hiring too quickly or point the finger at "bad luck." When administrators bypass thorough, professional selection systems and hire an unsatisfactory performer, I have heard them groan, "this marriage wasn't made in heaven."

This presentation does not seek to eliminate the intuitive moments in which the decision to make an offer occurs. However, I will make a strong case for a much more accurate approach to selection decision by infusing the in-depth interview with greater planning, thoroughness, and nationality. The subjective elements of rapport, chemistry and hitting it off with a candidate are truly important, but only within the context of a valid, balanced, thoughtfully planned approach.

This presentation will provide a discussion of the factors and techniques that can serve as guidelines to administrators for ascertaining personnel needs, recruiting and selecting athletic personnel. The presentation covers the following topics:
I. Determining personnel needs
2. Establishing position descriptions
3. Recruiting techniques
4. Affirmative action considerations
5. Tools and methods for screening and selection process a) In-depth selection interview guide b) In-depth selection interview form
6. Short interviews by co-workers
7. Thorough review of all notes
8. Hire/no hire decision



When an athletic position becomes vacant, the administrator should explore certain factors before attempting to select a person to fill the vacancy. A wise athletic administrator should ask the following questions; Are the job functions of this position essential to the department? Can these job functions be carried by existing personnel without detriment to the current functions? Could the athletic department continue providing needed services if the position is not filled?

If the athletic administrator answers the first question in the affirmative and the second and third questions in the negative, he or she should review the job's function and skill requirements. duties of the job, the expected performance level, the skills and other qualifications should be pr in a new or revised position description.

ESTABLISHING POSITION DESCRIPTIONS

After the duties have been identified, the position description should be developed. The position description should contain ~ major informational areas :
1. Title of position
2. To whom employee is responsible
3. General responsibilities, including for whom the employee is responsible
4. Specific duties to be performed
5. Qualifications, e.g., education, specific skills and knowledge, experience required
6. The relationship of the position to others in the department.

RECRUITMENT AND SELECTION

Recruitment and selecting are the first steps in the athletic administrator's attempt in building team of competent employees. The administrator has to develop a plan to recruit and select employees 1 the long-range objectives of the department. In order to accomplish this, the administrator has to COJ the previous experience, age, years of services, promotability, pay scales, and job development of the current as the administrator recruits and selects new employees.

The recruitment plan begins with the writing of the position description. The next stop is to ideI these sources where potential applications for the position can be made aware of its availability.

AFFIRMATIVE ACTION CONSIDERATION

It is at the point in the recruitment and selection process that nondiscrimination and affirmative action requirements must be considered.

Affirmative action requires the contractor to do more than ensure employment neutrality with r, race, color, religion, sex, and national origin. It requires employing organizations to make addiL efforts to recruit, employ, and promote qualified members of groups formerly excluded, even if that exclusion cannot be traced to particular discriminatory actions on the part of the employer. In es affirmative action is designed to further employment opportunity for women and minorities.

SCREENING

The four traditional tools used in screening applicants for a position are: the letter of appli, the resume, the interview, and the reference check.

Usually, the first step of screening potential candidates is reviewing the letter of application resume. A review of the application and/or resume, while comparing the qualifications listed with th, indicated in the position description, will yield a list of potential applicants to be interviewed. I scrutiny of their applications and/or resumes will help to further narrow the list of persons.

Once the list of potential applicants to be interviewed has been established, the following sequl of events should take place:

1. Schedule the interviews
2. Prepare for the interview in advance
3. Conducting the interview

The interview must be a two-way process. The administrator has to obtain information about the applicant and the applicant has to receive information about the position. The interview should invo] giving and receiving by both parties. The following strategies have been suggested:
1. Listen more than you talk. Don't disagree with or criticize the applicant regarding his or her opinions.
2. Choose your questions carefully. Use open-minded questions that begin with what, how, when, why, and who.
3. Observe how statements are made as well as what is said. Nervous gestures or mannerisms, as as hesitations, may be important clues in assessing the significance of the comments.
4. Try to avoid "halo" and bias effects, i.e., don't let one incident or factor color your assessment of all other factors.
5. Look for patterns of success or failure for temperamental characteristics of behavior. Whatever a person has done in the past is a good indicator of what he or she will do in the future.
6. Keep note-taking to minimum during the interview.
7. Conclude the interview when you have received the information which you need and the applicanu has received the necessary information on the position.
8. Watch for closing remarks, even after the formal interview is finished. The applicant is usually completely relaxed at this time and will often say what he or she is really thinking. Some revealing comments may be made by the person upon exiting.
9. Thank the applicant for coming and giving up his or her time.

SOME COMMON INTERVIEWING PITFALLS

1. Not asking questions clearly.
2. Interrupting when interviewee is doing his "preparatory thinking" before answering.
3. Cutting off responses interviewee thinks are important.
4. Overlooking "little clues" of a "big negative."
5. Probing beyond an interviewee's willingness to talk.
6. Permitting an interviewee to wander around.
7. Using leading questions (would you say...?)
8. Asking questions which can be answered by a yes or no.

SHORT INTERVIEWS BY CO-WORKERS


In order to make the screening process more efficient, in-depth, and palatable to the interviewee because topics (goals, technical abilities, etc.) are divided up for emphasis by different interviewers. Important questions are often asked a second time, permitting a couple of interviewers to discuss most job-relevant aspects of candidate's background, abilities, and goals. A later pooling of these multiple perspectives will not be a substitute for an in-depth selection interview, but can produce some rich meaningful data.

THOROUGH REVIEW OF ALL NOTES

When the in-depth selection interview is completed, and co-workers have had short interviews with the person, and record checks have been performed, it is wise to thoroughly review all notes. Several passes through the notes give greater insights about the candidate. Each person's specification is rated, based upon extensive and relatively objective, verifiable behaviors.

HIRE/NO HIRE DECISION

The recolDtDended approach for all of the stops should provide a solid foundation to the decision.