A problem employee can be a real pain, affecting everyone around them, damaging a company’s reputation and disrupting business operations.
Dealing effectively with problem employees requires confidence, competency and action. Yet instead of confronting the issue head-on and terminating such a worker, employers often delay. They hope that problem employees will change their ways or leave on their own.
“Why not just terminate the employee? It’s easier said than done sometimes,” says Jeff Risch, a Chicago-based labor and employment attorney at Amundsen Davis law firm.
Although a vast majority of states recognize employment at will, employers still have various statutes and legal protections to consider when terminating a problem employee. A union workforce can make it even more complicated.
Equal Employment Opportunity laws protect job applicants and employees from discrimination based on race, color, religion, sex and national origin. Employers need to respect those rights while also considering a problem employee’s claims of a hostile work environment or workplace harassment.
Things can get messy.
Protect yourself
Risch says he has several suggestions for simplifying the process and protecting an organization from liability when terminating a problem employee.
First, conduct a proper investigation of misconduct or poor performance. Next, conduct an independent review of the proposed dismissal. Don’t just terminate the employee on the spot without giving management the time to assess employment needs, company policies, contracts and corporate culture. Before making the final dismissal decision, give the employee an opportunity to give his or her side of the story, either verbally or in a written statement.
If dismissal is the best course of action, then it’s time to plan a termination meeting. Risch recommends scripting the meeting into three to five sentences and identifying the grounds for dismissal in straightforward terms.
“You want to pick the reason. What was the final straw?” Risch says. “You don’t get bonus points for including every reason imaginable.”
If an employee challenges the termination, it’s more difficult for an attorney to defend multiple shifting reasons than only one issue that led to dismissal.
“Stay on script. Become a broken record,” Risch says.
He also recommends using the right terminology. Layoffs, terminations and Reductions in Force differ and each carries specific legal liabilities. Employers should clearly state that an employee is being terminated.
What not to do
Risch says there are also common pitfalls for employers to avoid. Employers are less likely to face legal consequences if they:
- Follow company procedures regarding a progressive disciplinary policy or a performance improvement plan before dismissal.
- Have evidence of or a witness to the events leading to dismissal.
- Document the facts leading to termination.
- Make reasonable accommodations for employees with disabilities or special needs.
- Investigate claims of harassment or discrimination and take prompt, effective remedial action.
- Consider protected activity. Examples of protected activity include employees who file discrimination complaints; complain about safety issues; voice concerns about wages, hours or other employment conditions; refuse sexual advances; or protect others from sexual harassment.
Write it down
When moving to terminate a problem employee, proper documentation can “save your bacon,” Risch says. He recommends taking detailed notes regarding misconduct or poor performance. Record the date and the people involved in discussions related to the problem employee. Write down the questions and responses, focusing only on the facts, not opinions.
Then, when the decision is made to terminate an employee, send an email to yourself or management. The email can be short, simply saying, “I must terminate employee X,” or “I recommend terminating employee X as soon as possible.” The email cements the decision in time.
Problem employees often have a sixth sense about their dismissal and might complicate the matter by filing a workers’ compensation claim or hostile work environment or harassment report. By documenting a termination decision before these allegations surface, employers put themselves in a better legal position.
As a follow-up to the first email, employers should send another email summarizing the things they have done for the employee and why the employee is being terminated. Employers should be mindful of the tone used in all written and verbal communications.
“You want to come across as clear, consistent, calm and fair,” Risch says.
Also, presume that the employee may be recording any conversation and that the recording can be used in court.
Ongoing evaluations
Performance evaluations can also play a key role in court. Risch recommends evaluating work performance carefully and consistently, staying within legal boundaries.
“In performance evaluations, throw out attendance as a factor,” he says.
Time off may be protected by the Family and Medical Leave Act, Pregnancy Disability Leave, Americans with Disability Act leave or workers’ compensation.
When reviewing performance evaluations, employers should identify employees who fail to meet expectations. Employers should consult their employee handbooks to determine the next course of action and perhaps implement a Performance Improvement Plan. A PIP, retraining and frequent evaluations demonstrate good-faith efforts to change behavior or performance.
“Effective use of a legitimate PIP can materially protect the employer under the law,” Risch says.
Risch emphasizes that poor performance differs from misconduct, although both behaviors may result in dismissal. He stresses the importance of promptly looking into reports of employee misconduct.
“You want to document and show you’ve done a thorough, fair and open investigation,” he says.
Management matters
What management says, does or fails to do can be used in court. Human resources personnel, supervisors and managers should be trained in employment law and understand their legal responsibilities.
“You’re only as good as your weakest frontline supervisor,” Risch says.
He also encourages employers to be diligent in creating and enforcing company policies.
“You don’t get bonus points when you look the other way with the problem employee,” he says.
An alternative to immediate termination is a last chance agreement. A last chance agreement gives the employee a final opportunity to remain employed. Employees remain with the company unless they violate the terms of the agreement. A last chance agreement typically comes with conditions, like periodic drug testing and a deadline of 12 months, give or take.
“This is not the same as a final warning,” Risch says. “The tone is different.”
Severance
Employers also may offer problem employees a severance plan to transition them out of the organization. When offering a severance plan, employers should put the details down in writing.
“It’s really important that you have effective, ready-to-go releases,” Risch says.
Offering a severance plan is a legitimate way to release problem employees from their duties.
Employees can choose Door No. 1: a Performance Improvement Plan, last chance agreement or immediate termination. Door No. 2 gives them another alternative.
“Behind Door No. 2 is ‘Here’s a transition plan. Here’s a severance plan. You can pick,’” Risch says. “Tends to be pretty effective.”
A necessary evil
Dealing with problem employees can be stressful, time-consuming and labor intensive, but it’s sometimes a necessary part of the job. Problem employees can harm organizations in so many ways. Employee morale may plummet, causing job dissatisfaction and turnover. Productivity may fall, and employee errors might affect the end product and the bottom line. Problem employees also can harm a company’s reputation and customer satisfaction.
“A problem employee can really mess you up, and employers need to be more confident in the approach to managing and addressing and confronting that problem head-on,” Risch says.
About the Source
Jeff Risch is co-chair of Amundsen Davis’s Labor and Employment service group. His practice is entirely devoted to management-side labor and employment law. Visit amundsendavislaw.com for more employment resources and legal services.
