WEBVTT

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This has been great so far. But...

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how do I handle a problem employee?

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Mistakes in managing
employee performance

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can cause real headaches -
for everybody.

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Here's a good one for you.

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A wrongful termination case
that was in the news recently.

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He just wasn't cutting it.

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I like Mike;

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he's a good kid.

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I didn't want to fire him  -

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I just couldn't risk another workers'
compensation claim from him.

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He's such a klutz!

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So, I told him we were
eliminating his position.

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You know, let him down easy.

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The problem was

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he found out I hired someone to take
his position about a month later.

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If an employee doesn't follow safety
rules, you've got a responsibility

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to address the situation.

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But you can't fire someone
because you assume

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they will get hurt on the job again

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or because of any other
protected activity  -

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or for that matter,
any protected characteristic.

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And you should never make up a
reason for any employment decision  -

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but especially not a termination.

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I know it can be hard to tell an
employee they are being fired.

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But when the reason given is false
and the real reason is unlawful,

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that's what we call "pretext."

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It's nearly impossible to win a lawsuit
when pretext has been established.

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I don't know what the big deal is.

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He was employed at-will. Couldn't
the manager just have let Mike go

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with no reason or

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just by telling him he's employed
at-will and now he's unemployed

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at the manager's will?

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Perhaps, but it's not a good idea

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and I never recommend telling
an employee they are fired because

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they employed at-will.

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In theory, at-will employment puts
employers and employees

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on even ground.

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It gives both employer
and employee the right

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to end the employment relationship

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"at any time, with or without notice,
and for any lawful reason or no reason."

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There aren't a lot of laws restricting
the reasons employees can use

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to quit their jobs.

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So, the employment at-will concept
works pretty well for employees.

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But...

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there are lot of laws restricting
the reasons employers

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can use to fire employees  -

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such as anti-discrimination laws,
workers' compensation law,

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workplace health and safety law,

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and the list goes on and on.

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So, the employment at-will concept
is too flimsy for it to be used

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as the reason for discharging
an employee.

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You should understand
that at-will employment

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doesn't apply to all organizations
or to all employees.

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For example, once they've completed
a probationary period,

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federal government employees
are not at-will,

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and can only be terminated "for cause"
and with due process.

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As another example, employees
in a union bargaining unit

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are not employed at-will and can
only be terminated "for cause"

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and with due process.

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Also, employees
in the state of Montana

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are not employed at-will
because of a state law.

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No matter the type of organization
or where the employee works -

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in practice - a manager has
to make termination decisions

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in a fair and
non-discriminatory manner-

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and not in violation
of any applicable laws.

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Hang on.

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Can you back up a bit?

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What happens before
termination decisions are made?

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Unless an immediate termination
is called for because of

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severe misconduct

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or major error, most terminations
are the culmination of

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inappropriate conduct,
unsatisfactory performance,

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or poor attendance that
have built up over time.

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Most organizations follow progressive
discipline steps in these situations. And

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progressive discipline
is usually required

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in union collective
bargaining agreements.

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It's important to be careful,
fair, accurate, and consistent

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when issuing disciplinary or

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corrective actions- and when
evaluating performance.

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For example, a performance review
really shouldn't contain any surprises.

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It should confirm and reinforce
the feedback you've given an employee

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throughout the review period.

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That's why you should continually
document that feedback,

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including what the employee did well,

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and what the employee
did not do so well,

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and actions you took - so you can
refer to them in the performance review.

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It makes completing those
performance reviews

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much easier and less likely
to be based on what happened

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in the last month or two.

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So...

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having written record
of what happened,

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what you said, what you did, what the
employee said and did,

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is critical.

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Absolutely! Not only
in evaluating performance -

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but especially when you have
to use progressive discipline.

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Now remember, progressive
discipline puts an employee on notice

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that there's a problem

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and something has to be
done to correct it.

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Generally, there are five basic steps
to take to try to turn around

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a problem employee...

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Timely feedback, along with counseling
or coaching, is a first step

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toward resolving problems.

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This is really a pre-disciplinary step
taken early in the life of a problem.

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The next step is a verbal warning.

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Verbal warnings should bе
documented... and fun fact:

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"verbal" actually means both spoken
and written expressions.

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A written warning is next if the problem
is attendance or conduct.

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But if the problem is performance,

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a performance improvement
plan is a better tool.

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It gives a period of time for everyone
to see if improvement has been made

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and sets benchmarks for
the improvements needed.

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Re-training may be in order if the
problem is performance or conduct.

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Suspensions and Final Written
Warnings can be used

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when the problem
is attendance or conduct.

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Some employers include a last step option
in their progressive discipline policies.

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This can take many forms,

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such as a day off to consider whether
the employee wants to resign

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or say, or a last chance agreement.

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And finally, when all else fails,

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termination.

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It's important to note that
steps can be skipped,

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depending on the type of issue and
how severe the problem is.

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Alright. So, the purpose
of progressive discipline

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is to give the employee notice...

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...And opportunities
to correct a problem.

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Notice... and an opportunity
to improve...

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for what we call "due process."

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But sometimes,

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no matter what you do, no matter
how much you try to help...

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Well,

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it just doesn't work out.

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And you have to let somebody go.

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That is very important because
termination of employment

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is the number one reason employees
sue for employment discrimination.

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So, how do we avoid becoming
the next viral headline?

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Well first, if unions are involved,
you need to be aware of what

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the collective bargaining agreements
or union contracts say about

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performance management
and discipline.

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Beyond that, make sure you
never terminate an employee

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without lawful reason

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based on documented facts.

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There are four lawful
reasons for termination...

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Business changes  - like
reorganizations, restructurings,

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or the elimination of jobs  -

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often result in termination of employment
that is beyond the employee's control.

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But the employee's behavior

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is in their control, and misconduct
can result in discharge.

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This usually involves a violation of
a rule, code of conduct, or even a law.

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Unsatisfactory performance is usually
caused by the employee's inability

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to perform satisfactorily or their
unwillingness to do so.

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And finally, employees are
in control of their attendance.

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Managers should exercise particular
caution before disciplining

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or terminating an employee
for absenteeism.

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Some absences are protected
under various laws.

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So, before discharging
an employee for absenteeism,

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each absence should be carefully
reviewed with Human Resources

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to determine whether it
is a protected absence

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that cannot be considered
for disciplinary action.

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Let's me see if I can be
a lawyer for a moment.

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Our best defense when
a termination is challenged

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is a solid paper trail that
shows the employee

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was on notice about the problem
and what was expected of them...

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and was given reasonable opportunities
to meet the expectations.

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You're spot on!

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Maybe you should consider
going to law school!

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Thanks... but I don't think I could
handle all the lawyer jokes!

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Oh... that's a good one.

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Now, when you issue any
disciplinary action to an employee

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write a memo about it for yourself,
the employee, and the employee's

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personnel file in HR

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The memo should define the problem

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and its impact on
the business and the team.

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Explain what led up to
it so there's context.

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And describe the expectation and what
needs to be done to correct the problem -

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including goals to be met.

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Offer assistance to the employee  -
such as training or re-training,

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mentoring/coaching,

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regular progress meetings,
and the like.

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Finally, the memo should communicate

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that failure to correct the situation
could result in further discipline -

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up to and including termination
of employment.

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Don't shy away from this. It puts the
employee on notice that this is serious.

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And it prevents the employee from being
surprised if they are later discharged.

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I know that can seem
like a lot of work, but

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effort you put into
evaluating performance

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fairly, using progressive
discipline when needed,

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and keeping good
documentation will pay off...

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big time.

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Thanks Vanessa.

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That was some great information.