DEALING WITH THE TROUBLED/TROUBLING EMPLOYEE

I recently heard about a young boy sitting in front of a country store drinking a soda. It

was a hot summer day and the young boy liked to great the farmers as they would walk

up the steps, out of the heat of the day and into the store. One day a farmer stopped to

visit with the young boy and said – “That sure is a good looking dog with you. Does

your dog bite?” The young boy responded with a confident “NO.” The farmer reached

down to pet the dog only to be bitten several times before he could break free from the

strong jaws of the vicious attack. The farmer looked angrily at the boy and sternly stated

– “I thought you said your dog did not bite.” Without hesitation, the young boy looked

up and without any hesitation proclaimed – “That’s not MY dog!!”

I am certain we have all faced those situations where an employee, co-worker, colleague

or supervisor have proclaimed – “That’s not my job.” In those instances, our reactions to

situation will most likely set the tone for either a meaningful resolution or a separation

from employment. In the next few pages, I will discuss the topics of “Dealing with the

Troubled/Troubling Employee.”

A. Evaluating Employee Performance

Evaluating employee performance encompasses more than completing the annual

performance evaluation. Typically, the company’s written policy has a time allocated to

conduct the performance of its employees. The evaluation process is usually “form”

driven and both the supervisor and employee check the boxes, sign the evaluation form

and wait until the next mandated evaluation.

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A meaningful evaluation process requires preparation and a desire to have a true

exchange of ideas and feedback on ways to improve one’s workplace performance. A

meaningful and truthful employee evaluation also includes observations outside the

written job description. Each employee has a set of written of job performance goals and

expectations. Statistics or data proves if the employee is meeting those productivity

goals. As they say, “figures don’t lie but liars do figure.”

There is more to a successful company and happy employees than meeting the written

performance objectives. Employees are not emotionless robots in the workplace. Is the

employee willing to help out a colleague? Does the employee interact well with

everyone? Does the employee treat customers with respect? All of these characteristics

can be summarized with – Does the employee have a positive mental outlook and

attitude? Do they see the cup half empty or half full?

A key component to an informative performance evaluation, particularly in those

instances where the employee is angry or involved in a tense situation, is the ability to

listen. Avoid the temptation to rush to judgment and pick a side. In many instances,

there is no right or wrong. Instead, each employee may have a different perspective on

the situation. Rather than becoming irritated at the situation, use the opportunity to

improve productivity and a chance to improve it by better understanding the problems

troubling the employee. The ability to listen and become a sounding board for the

employee will strengthen the employee/employer relationship and build a sense of trust

with the employee because they recognize their voice is being heard.

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We all have a tendency to recognize only the negative aspects of an employee’s

performance. We all have those employees that can point out the problems in the

workplace. The best employees are those who not only recognize the problem but

present us with solution from their perspective on how to deal with it.

Regardless, a successful evaluation is one in which the employee recognizes clear

feedback. Say what you mean and mean what you say. Although this approach may be

uncomfortable, if presented in a positive and professional manner, the employee will

have no questions about the performance related issues as they move forward.

B. Employee Discipline Plan and Proper Documentation

Most employee handbooks contain a written progressive discipline plan of improvement.

Make attempts to follow it. The performance plan has likely been approved by upper

management or their legal team and has been proven over the course of time to be

effective.

The most important aspect of a discipline plan is writing down the key performance

related issues. We have all been in those situations where we have neglected to

document and encounter with an employee. Avoid the temptation to “do it later.”

Instead, document it as it happens. The most difficult situations arise when there is not

proper documentation of an employee’s performance to justify a separation from

employment.

On those occasions where you are faced with the difficult task of taking disciplinary

actions against an employee, be sure the discipline is consistent with each employee. To

maintain respect throughout all levels of the company, each employee must be treated the

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same. Treat each employee fair – if the consequences for 2 untimely written reports is a

verbal reprimand, impose the same discipline to everyone.

Employees need to know the consequences of their actions too. Too often, an employee

will say – “I did not know that I would receive a written reprimand. We talked about it

last week and I thought I was doing better.” This scenario can be avoided if the

consequences of one’s performance fails to improve by clearly communicating those

consequences.

C. Legal v. Illegal Reasons for Termination

From the perspective of an employee, all terminations are illegal. From the perspective

of an employer, all terminations are legal.

Every terminated employee that contacts my office will state, “I have a wrongful

termination case.” I listen carefully to their explanations and in every instance, I agree –

you have been wrongfully terminated. However, I must go on to explain the difference

between a wrongful termination and an unlawful termination.

Oklahoma is an “at-will” employment law state. Simply put – an employer can terminate

an employee for any reason at all; except of course, in a few limited circumstances.

Those limited circumstances, however form the basis for most legal actions by

employees. Generally, an employer cannot terminate one’s employment because of race,

religion, gender, age or a disability. What often goes unnoticed, especially by the

employee, is that the employee can quit at any time without notice to their employer.

In each of the generally recognized exceptions, the employee must first fit within the

“protected class” designed by the statutory remedy. The employee must set forth a prima

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facia case and meet the essential elements of the case. Once the employee establishes the

essential elements of the case, the burden of proof shifts to the employer to state a

legitimate non-discriminatory reason for the employment related decision. Typically, this

is an easy burden to meet which switches the burden of proof back to the employee. The

employee must show that the employer’s proffered reason is a pretext, sham or unworthy

of belief.

D. Retaliation Claims and Employee Discipline

Most frequently, retaliation claims arise after an employee complains of perceived

discrimination in the workplace or formally submits a charge of discrimination with an

appropriate government agency. If an employee complains and the employer has

knowledge of the complaint, it should be acknowledged and an action plan implemented

to address the concern.

Careful consideration should be given to avoid the appearances of retaliating against the

employee making the complaint. Legally, retaliation claims are not as difficult to prove

from an evidentiary perspective. Generally, the employee must only show they

complained about a discriminator practice or action and suffered an adverse employment

action after complaining. The key legal analysis relates to the temporal proximity of the

complaint and the adverse employment action.

As mentioned above, written and previously documented interaction with an employee’s

conduct is the best evidence to defeat a retaliation claim. On the other hand, if the

employer terminates an employee the day following a complaint and has failed to

document prior work related deficiency, there is an inference of retaliation.

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E. Negotiating Severance Packages and Separation Pay

An employee and employer may negotiate a severance or separation package instead of

termination. Severance packages most often arise in those instances where a company

implements a reduction in force. Most companies have a written policy that outlines the

procedures for the reduction and those employees affected. Generally, the last hired is

the first out in the reduction process. There are generally recognized exceptions to this

idea and depend on numerous variables.

Severance and separation pay formulas are most typically based on the length of one’s

employment. Fairness and a recognition of the length of one’s service to the company

typically serves as a model. Most often one is offered a month’s pay for every year of

service.

There are important time and review considerations when asking employees to negotiate

severance or separation agreements. An employee should be given the requisite time to

revoke or reconsider the agreement after it is signed by the parties. In addition, a

severance agreement should clearly articulate the claims the employee is releasing in

exchange for the payment of agreed severance pay. A formalized agreement should be

signed and retained by the parties.

F. Compliance Exit Interviews: Documents and Disclaimers

Exit interviews are frequently used as a tool for the employer to better understand the

circumstances of an employee’s separation. An employer can learn information from the

employee on how to improve the overall effectiveness of the employee/employer

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relationship. It also allows the employer to gather and retain all the sensitive and/or

proprietary information in the employee’s possession prior to leaving the premises.

Maryann Palmeter recently wrote an article for the AACP in which she identified some

compliance related questions for consideration.1 The following is a sampling of the

suggested questions:

Do you know of any ethical or compliance issues that should be addressed? When you were trained, did you receive an adequate orientation regarding

the company’s compliance policies? Are you aware of exactly how to submit a report about compliance

concerns, anonymously if you choose? What was the most effective means of communication used to reach you

regarding the company’s compliance policies? How could the company strengthen its message regarding ethic and

compliance? Do you feel department management supported compliance initiatives? Do you feel executive leadership supported ethics and compliance

initiatives throughout the organization?

No one enjoys dealing with the troubled or troubling employee. Despite the lack of joy

associated with these issues, effective and clear communication is the key to a positive

and successful outcome for everyone.

1 13 Questions to Ask During a Compliance Exit Interview – Maryann Palmeter – AACP – May 13, 2016

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