WEBVTT 00:00:44.122 --> 00:00:47.247 Good morning, Sharon. Any calls? 00:00:48.260 --> 00:00:52.357 Please call Mr. Bronstein. Why am I not surprised? 00:00:53.240 --> 00:00:56.620 Bronstein's representing a guy who's suing one of my clients 00:00:56.630 --> 00:00:58.312 for wrongful termination. 00:00:58.490 --> 00:01:01.499 It's early, but I don't think my client is going to like the outcome. 00:01:01.921 --> 00:01:05.601 It seems this employee had worked for the company for a number of years. 00:01:05.612 --> 00:01:08.663 His performance had always been marginal at best. 00:01:08.812 --> 00:01:12.226 However, the company had never documented the performance issues. 00:01:12.470 --> 00:01:15.200 About three months ago, the employee told his manager 00:01:15.210 --> 00:01:18.867 that he had recently been diagnosed with multiple sclerosis. 00:01:19.240 --> 00:01:22.460 The manager began to document the employee's performance issues, 00:01:22.470 --> 00:01:26.120 and the company terminated the employee for poor performance. 00:01:26.850 --> 00:01:29.360 Well, now the employee is suing the company 00:01:29.370 --> 00:01:32.898 for wrongful termination and disability discrimination. 00:01:33.300 --> 00:01:37.560 Unfortunately, the lack of documentation prior to the MS diagnosis 00:01:37.570 --> 00:01:40.406 makes it look like this was a great employee that the company 00:01:40.417 --> 00:01:43.531 all of a sudden decided to get rid of because of his illness. 00:01:44.021 --> 00:01:45.341 Not good. 00:01:46.600 --> 00:01:48.241 A lot of the cases I see 00:01:48.252 --> 00:01:51.343 stem from mishandled progressive discipline and termination. 00:01:51.638 --> 00:01:54.240 So, let me tell you about five of the most common issues 00:01:54.250 --> 00:01:56.189 I've seen managers struggle with, 00:01:56.200 --> 00:01:58.380 and then I'll give you three straightforward actions 00:01:58.391 --> 00:02:00.364 you can take to avoid those potholes. 00:02:00.660 --> 00:02:03.220 By the time we're done you should have a much better idea 00:02:03.230 --> 00:02:04.888 about how to stay out of court. 00:02:05.030 --> 00:02:07.780 And, just as important, you'll see how progressive discipline 00:02:07.790 --> 00:02:11.640 can actually help you keep good people and improve performance. 00:02:12.564 --> 00:02:14.752 These cases can be costly. 00:02:14.994 --> 00:02:18.080 Juries have awarded millions of dollars, 00:02:18.090 --> 00:02:20.410 especially where they found employees were fired 00:02:20.420 --> 00:02:22.509 in retaliation for their whistle-blowing. 00:02:22.806 --> 00:02:24.264 But even if you never get sued, 00:02:24.275 --> 00:02:27.970 mishandling discipline and termination is costly to any organization. 00:02:27.980 --> 00:02:30.344 Because it means you are keeping poor performers, 00:02:30.355 --> 00:02:33.066 or you have a revolving door of new employees, 00:02:33.077 --> 00:02:36.703 and either way that can affect the morale of your long-term employees. 00:02:37.010 --> 00:02:39.750 Let's face it. It's better for you and your organization 00:02:39.760 --> 00:02:43.060 if you can get a current employee to improve their performance, 00:02:43.070 --> 00:02:46.710 rather than you having to go through the hassle of hiring a new employee, 00:02:46.720 --> 00:02:48.937 with the risk that they might actually be worse. 00:02:49.210 --> 00:02:53.148 So, here's what you need to know to handle discipline and termination fairly. 00:03:06.790 --> 00:03:09.154 There's this guy I manage... Mitchell. 00:03:09.507 --> 00:03:11.672 He's always giving me problems. 00:03:12.230 --> 00:03:14.032 And he doesn't get things done. 00:03:14.043 --> 00:03:17.042 And when they are done, he doesn't do it right. 00:03:17.200 --> 00:03:19.120 So, I don't want to confront the guy 00:03:19.130 --> 00:03:22.665 because he does not react well to criticism or input. 00:03:23.430 --> 00:03:25.945 I mean, he makes a big deal out of everything. 00:03:26.539 --> 00:03:28.664 So, I just give assignments to other people. 00:03:28.854 --> 00:03:30.554 There's nothing wrong with that, right? 00:03:31.570 --> 00:03:34.825 Assigning work to other employees to avoid a discipline issue 00:03:34.836 --> 00:03:36.914 is a disaster waiting to happen, 00:03:37.200 --> 00:03:41.594 particularly if the problem employee retains his job title and wage rate. 00:03:41.920 --> 00:03:45.004 In addition to the morale problems, you could face a lawsuit 00:03:45.015 --> 00:03:46.550 brought by one of the other employees 00:03:46.560 --> 00:03:49.484 for unfair or discriminatory employment practices. 00:03:49.860 --> 00:03:53.890 To be honest, assigning work to other employees is just one of many ways 00:03:53.900 --> 00:03:56.976 I've seen managers try to avoid addressing a discipline issue. 00:03:57.130 --> 00:03:59.722 Some managers try the "pass the buck" approach. 00:04:00.160 --> 00:04:04.380 For example, Manager A works to transfer an employee to another department, 00:04:04.390 --> 00:04:08.144 without informing Manager B of the employee's discipline situation. 00:04:08.816 --> 00:04:12.740 Or I've seen managers pass the buck by delegating a discipline problem 00:04:12.750 --> 00:04:15.999 to either a subordinate or up the ladder to his or her manager, 00:04:16.009 --> 00:04:18.531 which is generally not a smart career move. 00:04:19.170 --> 00:04:22.460 I've also seen managers try to use the layoff excuse, 00:04:22.470 --> 00:04:25.050 where a manager fabricates the need for a layoff 00:04:25.060 --> 00:04:27.769 in order to get rid of an undesirable employee. 00:04:28.801 --> 00:04:32.055 In all of these situations, the managers' actions 00:04:32.066 --> 00:04:36.277 are putting their organizations at risk and jeopardizing their own careers. 00:04:36.700 --> 00:04:40.000 Although it can be uncomfortable or even unpleasant at times, 00:04:40.010 --> 00:04:43.450 you have a responsibility to take corrective or disciplinary action 00:04:43.460 --> 00:04:45.164 when the situation warrants it. 00:04:45.508 --> 00:04:50.130 If you're unsure of what action to take, consult with your human resources area, 00:04:50.140 --> 00:04:53.980 legal department or senior management for help on where to begin. 00:05:18.990 --> 00:05:22.547 You know, where I come from, there are two kinds of employees: 00:05:22.558 --> 00:05:24.989 there are the new ones you make toe the line, 00:05:25.000 --> 00:05:28.010 then there's the ones you cut some slack - they've paid their dues. 00:05:28.020 --> 00:05:29.496 You know what I'm saying? 00:05:29.507 --> 00:05:32.922 So, I give Chris and Ted a break once in a while. Big deal. 00:05:33.177 --> 00:05:36.977 I mean, they've been here 20 years and in my book, they've earned it. 00:05:37.870 --> 00:05:40.419 One of the easiest ways to land in hot water 00:05:40.430 --> 00:05:43.601 is to be inconsistent in how you use progressive discipline. 00:05:43.770 --> 00:05:45.240 Just like avoiding discipline, 00:05:45.250 --> 00:05:49.336 it can lead to claims of employment discrimination and wrongful termination. 00:05:49.789 --> 00:05:53.144 There are a number of ways discipline can be inconsistent. 00:05:53.785 --> 00:05:57.430 For example, you might make an exception for an employee who is chronically late 00:05:57.441 --> 00:05:59.319 because you know she has a pre-schooler. 00:05:59.465 --> 00:06:01.465 That might seem like a nice thing to do, 00:06:01.476 --> 00:06:03.890 but it can lead to trouble if you don't address it. 00:06:04.470 --> 00:06:07.891 Or you might consciously or unconsciously discipline differently 00:06:07.902 --> 00:06:09.683 based on cultural differences. 00:06:09.694 --> 00:06:11.480 Again, not a good idea. 00:06:11.918 --> 00:06:14.848 I've also seen managers treat men and women differently. 00:06:14.859 --> 00:06:17.090 They might use a demeaning or threatening tone 00:06:17.100 --> 00:06:19.309 when disciplining female employees. 00:06:19.406 --> 00:06:22.832 Yet they're completely professional when dealing with male employees. 00:06:23.394 --> 00:06:26.067 Now, in all of these situations you're running the risk 00:06:26.078 --> 00:06:29.754 of committing discrimination and ending up with a costly court case. 00:06:32.273 --> 00:06:35.446 That's why I tell managers to always be professional, 00:06:35.457 --> 00:06:38.055 be even-handed, and above all, be consistent. 00:06:38.380 --> 00:06:40.840 Now obviously, employees aren't machines. 00:06:40.850 --> 00:06:43.579 And part of being a good manager is being able to 00:06:43.590 --> 00:06:46.836 tailor your management style to the unique needs of individuals. 00:06:47.182 --> 00:06:49.211 But when it comes to progressive discipline, 00:06:49.222 --> 00:06:51.930 making exceptions or applying different standards 00:06:51.940 --> 00:06:55.043 is a great way to end up telling your story to a judge. 00:07:20.190 --> 00:07:25.420 Look, I just don't have time to fill out those long performance appraisal forms. 00:07:25.570 --> 00:07:29.474 I mean, my people know how they're doing because I give them feedback. 00:07:29.860 --> 00:07:32.990 The appraisal is just so HR can say they did something. 00:07:33.210 --> 00:07:37.340 So, I just go through it fast and give everyone "meets" or "exceeds." 00:07:37.350 --> 00:07:41.453 That way they're happy, I'm happy, and we can get back to some real work. 00:07:42.620 --> 00:07:46.130 As odd as it may seem, giving someone who doesn't deserve it - 00:07:46.140 --> 00:07:48.664 a positive appraisal - can get you into trouble. 00:07:48.930 --> 00:07:51.317 I can't tell you how many times a manager has told me 00:07:51.328 --> 00:07:53.255 they want to terminate an employee, 00:07:53.266 --> 00:07:55.985 but the performance appraisal says they are a good worker. 00:07:56.281 --> 00:07:58.909 Sure, if their performance has changed, that's one thing. 00:07:59.065 --> 00:08:02.616 But often the manager says their performance has been bad all along, 00:08:02.627 --> 00:08:03.994 and they finally got fed up. 00:08:04.471 --> 00:08:08.541 Well if the performance appraisal says poor performance "meets standard," 00:08:08.552 --> 00:08:10.244 you can't fire them without warning. 00:08:10.494 --> 00:08:12.280 Sure, you can change your standards, 00:08:12.291 --> 00:08:15.753 but you have to let the employee know exactly what the new standard is - 00:08:15.764 --> 00:08:18.170 and you have to give them plenty of time to improve. 00:08:18.627 --> 00:08:20.905 That might include sending them to training, 00:08:20.916 --> 00:08:23.060 meeting with them one-on-one, or other actions 00:08:23.070 --> 00:08:25.041 to show you are treating them fairly. 00:08:25.790 --> 00:08:28.706 Now if you've been giving good appraisals and all of a sudden, 00:08:28.717 --> 00:08:31.420 the employee engages in misconduct, that's different. 00:08:31.826 --> 00:08:35.541 Let's say the employee is a great worker, but one day they get in a fight. 00:08:35.979 --> 00:08:38.706 Fighting might be grounds for immediate termination. 00:08:38.717 --> 00:08:42.719 But here again, you have to be fair. You - or more likely, HR... 00:08:42.729 --> 00:08:46.022 has to investigate all the circumstances leading up to the fight. 00:08:46.230 --> 00:08:49.190 If the other guy hit first, maybe this employee should not be disciplined 00:08:49.201 --> 00:08:50.920 if he was merely defending himself. 00:08:51.460 --> 00:08:54.936 You also have to investigate in cases of poor performance. 00:08:55.130 --> 00:08:56.930 You should sit down with the employee, 00:08:56.940 --> 00:09:00.303 tell them you've noticed a slip in their performance, and ask them why. 00:09:00.483 --> 00:09:01.779 It might not be their fault. 00:09:01.889 --> 00:09:05.573 Maybe one of their co-workers is failing in their job, and that's affecting them. 00:09:05.584 --> 00:09:07.459 Or maybe they have a serious health condition... 00:09:07.470 --> 00:09:09.686 or they are caring for a disabled veteran at home. 00:09:09.963 --> 00:09:13.189 There could be all sorts of reasons that you might have to accommodate. 00:09:13.241 --> 00:09:16.850 So, discipline should never be the first thing you do - talking is. 00:09:17.229 --> 00:09:20.529 And speaking of your organization's policies and procedures, 00:09:20.539 --> 00:09:23.854 make sure you know what they are. You need to follow them exactly. 00:09:24.026 --> 00:09:26.183 Before you write your first disciplinary warning, 00:09:26.194 --> 00:09:29.789 you should talk with HR and make sure you are following the rules. 00:09:29.916 --> 00:09:32.385 Get their advice on how to write the warning, too. 00:09:32.643 --> 00:09:34.491 If your organization has a union, 00:09:34.502 --> 00:09:36.980 then you have to follow the union contract as well. 00:09:37.510 --> 00:09:40.951 The good news is, if you follow all the policies, 00:09:40.962 --> 00:09:43.151 give accurate performance appraisals 00:09:43.162 --> 00:09:45.940 and treat employees fairly by investigating 00:09:45.951 --> 00:09:47.940 and giving them a chance to improve... 00:09:47.950 --> 00:09:50.709 you can terminate them without worrying about a lawsuit. 00:10:16.270 --> 00:10:20.990 I've got an employee who I'd be justified in firing for poor performance, 00:10:21.000 --> 00:10:23.393 but I'm convinced he wants me to fire him... 00:10:23.404 --> 00:10:25.397 so he can sue for discrimination. 00:10:25.788 --> 00:10:27.350 So, I put up with him. 00:10:28.063 --> 00:10:31.783 I just can't afford to risk a lawsuit at this point in my career. 00:10:34.990 --> 00:10:38.038 As surprising as it may seem, avoiding termination 00:10:38.049 --> 00:10:40.780 is something I've seen too many managers stumble on, 00:10:40.790 --> 00:10:42.936 especially when they're dealing with employees 00:10:42.947 --> 00:10:44.627 they think are more likely to sue. 00:10:44.729 --> 00:10:47.759 For example, minorities, women or the disabled. 00:10:48.064 --> 00:10:51.869 But failing to take action can get you into trouble in a couple of ways. 00:10:52.174 --> 00:10:55.045 The first is a claim of discrimination by this employee 00:10:55.056 --> 00:10:56.970 for failing to help them improve - 00:10:56.980 --> 00:11:00.162 because that's what the performance improvement process is all about. 00:11:00.443 --> 00:11:03.213 That can have a negative effect on their career growth, 00:11:03.224 --> 00:11:05.549 future wage increases and promotions. 00:11:05.560 --> 00:11:07.611 That's unfair to the employee - 00:11:07.622 --> 00:11:09.658 so they could even sue if you don't terminate them. 00:11:10.103 --> 00:11:12.530 The second claim could come from another employee 00:11:12.540 --> 00:11:14.791 that you terminate for poor performance. 00:11:15.020 --> 00:11:18.873 Let's say the employee you haven't terminated is a minority female, 00:11:19.045 --> 00:11:21.826 and the employee you do terminate is a white male. 00:11:22.099 --> 00:11:26.070 HE would have a claim of discrimination based on race and sex, 00:11:26.080 --> 00:11:28.451 because he was treated worse than she was! 00:11:28.631 --> 00:11:30.502 And that's not "reverse discrimination" 00:11:30.513 --> 00:11:32.900 that's just plain illegal discrimination. 00:11:35.299 --> 00:11:39.908 Avoiding termination can also expose you to a negligent retention lawsuit. 00:11:40.250 --> 00:11:43.310 Basically, that means if you've got an employee who you know, 00:11:43.321 --> 00:11:47.337 or should have known, is prone to criminal behavior, abuse or violence 00:11:47.348 --> 00:11:51.521 and someone ends up getting hurt, you or your organization can be sued. 00:11:51.686 --> 00:11:55.650 And trust me, that's not the kind of lawsuit you ever want to be involved with. 00:11:55.821 --> 00:11:59.450 Get the support you need from human resources or senior management 00:11:59.461 --> 00:12:02.061 and act decisively to correct the problem. 00:12:28.818 --> 00:12:31.322 Hey, I don't know anybody who likes firing people. 00:12:31.509 --> 00:12:35.689 Yeah, it's part of the job, but I try not to think about it too much. 00:12:35.700 --> 00:12:37.280 You know what I mean? 00:12:37.291 --> 00:12:40.599 I mean, for the most part I guess I just wing it. 00:12:40.610 --> 00:12:43.767 Get in, get it over with, and get back to business. 00:12:44.080 --> 00:12:45.884 There's nothing wrong with that, is there? 00:12:46.791 --> 00:12:49.250 If your approach to termination is to "wing it," 00:12:49.260 --> 00:12:52.490 I can guarantee that sooner or later - probably sooner - 00:12:52.500 --> 00:12:54.229 you're going to end up in court. 00:12:54.384 --> 00:12:57.459 If you don't take the time to prepare, it's easy for you to say 00:12:57.470 --> 00:13:01.509 or do something inappropriate in a termination that causes problems. 00:13:01.791 --> 00:13:05.013 For example, you might interject a personal opinion... 00:13:05.091 --> 00:13:08.701 Or you might say something that implies bias or discrimination... 00:13:09.080 --> 00:13:11.310 You might even risk a defamation lawsuit 00:13:11.320 --> 00:13:13.970 for failing to conduct the termination in private... 00:13:14.250 --> 00:13:17.950 The truth is, handling a termination is a stressful event... 00:13:17.960 --> 00:13:21.229 ...and the best way I know of to avoid saying or doing something 00:13:21.240 --> 00:13:24.076 that can get you into trouble is to be prepared. 00:13:24.520 --> 00:13:27.752 And I always recommend that you use a checklist as a guide. 00:13:27.861 --> 00:13:31.159 It helps ensure that you've gathered the appropriate documentation, 00:13:31.170 --> 00:13:33.651 notified all the people who need to be involved 00:13:33.662 --> 00:13:37.326 and made arrangements for communicating with the remaining employees. 00:13:37.474 --> 00:13:40.230 Your organization's Human Resources or Legal department 00:13:40.240 --> 00:13:42.232 may have a checklist already. 00:13:42.243 --> 00:13:44.447 If not, you can make your own, 00:13:44.458 --> 00:13:47.783 but you definitely need to get it approved by HR or Legal. 00:13:48.122 --> 00:13:51.801 At a minimum, this checklist should include every policy and procedure 00:13:51.812 --> 00:13:54.482 at your organization relating to termination. 00:13:54.740 --> 00:13:57.611 For example, you need to get the final paycheck ready. 00:13:58.072 --> 00:14:01.002 You have to make sure the employee returns keys and equipment. 00:14:01.410 --> 00:14:03.767 There are legal notices you have to give the employee 00:14:03.778 --> 00:14:05.666 about unemployment and health insurance. 00:14:06.580 --> 00:14:08.870 Decide the best place to have the meeting. 00:14:08.880 --> 00:14:12.486 What time of day is best, so it is the least disruptive to other employees? 00:14:12.770 --> 00:14:14.940 You also have to consider security issues. 00:14:14.950 --> 00:14:19.131 Should you have an HR, or another manager, or even a security guard present? 00:14:19.960 --> 00:14:22.314 Write out exactly what you are going to say, 00:14:22.550 --> 00:14:25.654 sticking to the facts about the behavior or performance. 00:14:25.865 --> 00:14:28.890 If the employee challenges you in the termination meeting, 00:14:28.900 --> 00:14:31.849 don't respond in kind. Just stick to the script. 00:14:32.494 --> 00:14:35.827 The checklist is a great tool to help you gather your thoughts. 00:14:35.838 --> 00:14:39.077 Work through the emotional issues and prepare a plan of action... 00:14:39.088 --> 00:14:41.362 so that you can go into the situation knowing exactly 00:14:41.373 --> 00:14:44.720 what you're going to say - and do - and just as importantly - 00:14:44.730 --> 00:14:46.896 what you're not going to say or do. 00:15:05.340 --> 00:15:09.580 Now that I've told you about five of the toughest issues managers struggle with, 00:15:09.713 --> 00:15:12.040 let me tell you about three straightforward actions 00:15:12.050 --> 00:15:15.466 you can take to avoid problems with discipline and termination. 00:15:16.474 --> 00:15:20.250 Action number one - be sure you discipline consistently. 00:15:20.260 --> 00:15:23.767 Regardless of the person's status or your personal relationship, 00:15:24.030 --> 00:15:26.990 if you've got a performance issue, deal with it immediately... 00:15:27.000 --> 00:15:29.884 and keep at it until the situation is resolved. 00:15:30.330 --> 00:15:32.970 Make sure that you don't discriminate by giving some people 00:15:32.980 --> 00:15:34.990 more favorable treatment than others. 00:15:35.280 --> 00:15:37.599 You must treat like cases alike. 00:15:37.610 --> 00:15:41.180 One way to make sure you are consistent is by using a checklist 00:15:41.190 --> 00:15:45.279 and following all of your organization's policies and procedures. 00:15:46.006 --> 00:15:50.140 Action #2: Keep your focus on behavior. 00:15:50.150 --> 00:15:54.303 This is a very critical point - you must always focus your discipline efforts 00:15:54.314 --> 00:15:58.779 on employee behavior and failure to meet the expectations of the job. 00:15:59.060 --> 00:16:02.360 It may seem obvious, but a lot of managers fall into the trap 00:16:02.370 --> 00:16:04.939 of arguing about personality or attitude. 00:16:05.720 --> 00:16:09.146 Instead, you should focus the discussions on clearly identifying 00:16:09.157 --> 00:16:13.745 what the employee needs to do to improve, the timeline for seeing improvement, 00:16:13.756 --> 00:16:16.860 the consequences for failing to meet expectations, 00:16:16.870 --> 00:16:19.127 and how you will help them become successful. 00:16:19.580 --> 00:16:20.930 Here's a good guideline... 00:16:20.940 --> 00:16:23.350 No one should be surprised when they're fired. 00:16:23.360 --> 00:16:26.783 They should see it's coming, because you went through all these steps. 00:16:27.060 --> 00:16:28.991 And finally, action number three - 00:16:29.002 --> 00:16:32.166 Be specific when you're documenting performance issues. 00:16:32.569 --> 00:16:34.974 You should focus on the specific facts... 00:16:35.140 --> 00:16:39.310 The who, what, where, when and how of the situation. 00:16:39.568 --> 00:16:42.978 And avoid opinions about an employee's motives or attitude. 00:16:44.140 --> 00:16:46.932 In my experience, if you make a good faith effort 00:16:46.943 --> 00:16:50.154 to take those three actions - discipline consistently, 00:16:50.165 --> 00:16:53.770 focus on behavior, and be specific when documenting - 00:16:53.780 --> 00:16:57.099 you'll not only help keep you and your organization out of court, 00:16:57.110 --> 00:17:00.169 but you'll also be in a much better position to help your employees 00:17:00.180 --> 00:17:01.939 improve their performance. 00:17:02.158 --> 00:17:05.069 And after all, that's a big part of what being a good manager 00:17:05.080 --> 00:17:08.611 is all about helping people succeed.