Presented By: Laurent S. Drogin, David N. Kleinmann and Jeanette Baiardi

The Nightmare Employee: Understanding, Managing and Successfully Exiting the Problem Employee

Panelists

Laurent S. Drogin Esq.

Head of Labor and Employment Practice and

Co-Chair, Restrictive Covenant Practice Group

Tarter Krinsky & Drogin LLP

(212) 216-8016

ldrogin@tarterkrinsky.com

David N. Kleinmann Esq.

Partner and Co-Chair, Restrictive Covenant Practice Group

Tarter Krinsky & Drogin LLP

(212) 216-1115

dkleinmann@tarterkrinsky.com

Jeanette Baiardi Esq.

General Counsel

AKF Group

(212) 626-0110

jbaiardi@akfgroup.com

HINT: It’s what you were told as a child and tell your children.

Why do employees turn on employers?

We want fairness and react poorly when we perceive unfairness.

Who are problem employees?

Typical Scenarios

The new hire who doesn’t work out

• Does not get along with others or lacks ability

The mid-term employee who loses drive

• Disillusioned / grass grows greener

• Change in circumstances

• Personal events (divorce, health, finances)

• New reporting structure

• Change in job duties / required skillsets

Who are problem employees? (continued)

Typical Scenarios

The long-term employee

• Knows it all and knows best

• Does not like change

• Does not like taking direction from newer hires

• Physical or mental reduction in capabilities

• Eyeing retirement / clock watcher

The wrongdoer

Moral Compass

Subjective Perception

Personal Background

Personality Type

Who We Are

Moral Compass

We live by our own rules, and senses of right and wrong.

When violated, people have feelings of persecution, abandonment or being shunned.

SubjectivePerception

We all see things differently

Subjective Perception (continued)

What color is the dress?

Personal Background

• Gender, race, ethnicity

• Age (life experience ~ “my” generation)

• Religion

• Spouse, parents, children

• Health issues

• Background / Childhood experiences

• Economic considerations

• Nature / Nurture

• Natural intelligence

Personality Type

Type A:Self-driven + Competitive

Type B:Easy-going + Creative

Type C:Introverts + Stress-prone

Type D: Love routine + Follow orders

Who are you?

Moral Compass + Subjective Perception +Background + Personality =

Who we are in the playground.

Who Is The Problem Employee?

• Marked downturn in performance

• Health related?

• Absenteeism / chronic lateness

• Health related?

• Change in attitude towards coworkers

• Outward or passive aggression

• Bad act

• Complaints from coworkers

• Direct complaint from employee

Readiness • Initial Response • Initial Internal Considerations

Pause and Assess • Fact Gathering • Diffuse

Assure • Hindsight Bias • Write The New Facts • Tools

ProactiveGame Plan

Proactive Game Plan: Readiness

Train managers/supervisors to report early or immediately

Ensure employees know their obligation to self-report (early intervention)

Established reporting structure

• Are issues brought to HR or direct to corporate counsel?

• Can HR ask outside counsel for guidance?

• Does HR understand when they are supposed to ask for help?

Consider a proactive rather than reactive approach

• Make the facts before they happen

Proactive Game Plan: Initial Response

Safety first! (Health or violence)

Define your universe: Law – Policy – or both?

Who is involved?

• C-suite? Management?

• Have there been prior bad acts / duration of employment?

• Out of character?

Who are the eyewitnesses / who has helpful information?

What documents or evidence should I get immediately? (Email, attendance record, work product)

Do I need outside help from other counsel?

Proactive Game Plan: Initial Internal Considerations

Is there company precedent?

• How have others been treated in similar situations?

Does the employee appear to be:

• Rational?

• Paranoid?

• Angry?

• Justified?

• Right?

• Partly right?

Proactive Game Plan: Pause and Assess

You now control the fact pattern.

What is your goal / sought outcome?

• Fix the situation and live happily ever after?

• Discipline a wrongdoer?

• Separate from employee?

Only with an end in mind can you set a course.

What are the current or potential damages?

• You may be starting at zero!

Proactive Game Plan: Fact Gathering

Get complaints/information in writing from the employee

• Get quotes

• Make diagrams

• Take pictures

What is the root issue?

• Violation of law, policy, both?

• Perceived slight?

• Misunderstanding?

• Personality clash?

Proactive Game Plan: Fact Gathering (continued)

The insubordinate employee who refuses to cooperate

“Why do you believe that?”

• “Just a gut / feeling”

• “I don’t know”

• “Someone told me”

• “What else could it be?”

Diffuse: Listen Before Reacting

People want to be heard

• 80% success rate in mediation

Venting is therapeutic - calming

Venting gives the truth an outlet

Venting promotes rational thought

Diffuse: Listen Before Reacting (continued)

Employee may give you a workable answer that will solve or reduce the problem

• “I just want an apology”

• “Move my desk”

• “Check the air”

Document why the answer is “no” to unreasonable requests

Proactive Game Plan: Assure

Employees who believe you will help are less likely to bring claims in the moment

• Opportunity to fix the facts

No retaliation

Empathy – “The ability to understand and share the feelings of another”

• Neither agree nor disagree

• You are the possible solution

Hindsight Bias

Hindsight bias, also known as the knew-it-all-along effect or creeping determinism, is the inclination, after an event has occurred, to see the event as having been predictable, despite there having been little or no objective basis for predicting it.

- Wikipedia

Hindsight Bias At Work

• The older you get = Age discrimination

• Pregnancy = Pregnancy

• Health related absences = Disability / FMLA

• Request for accommodation = Perceived disability

• Promotion / compensation issues = Gender, race, etc…

Get Ahead of Hindsight Bias

Be prepared to answer:

• What did you know?

• When did you know it?

• What did you do about it?

• Why did you do it?

• Why didn’t you do X?

Take actions with answers in mind

Proactive Game Plan: Write The New Facts

• Lock in the existing set of facts

• Apply what you know to a projected logical outcome

• Plot a course

• Write a narrative

• Account for hindsight bias

• Obtain buy-in from employee

• Monitor progress (achieve goal)

• Create temporal proximity (achieve termination)

Tools You Can Use To Write The Facts

• FMLA / Paid or unpaid time off / Cooling off

• Temporary or permanent transfer

• Trial periods – see how it works (without PIPs)

• Frequent check-ins (Everything’s A-Ok)

• Employee’s counsel (sometimes an ally)

• Employee refusing to cooperate with investigation

• Training / Coaching

Tools You Can Use To Write The Facts (continued)

• Are you asking for a separation package?

• “What would you like to see done?”

• Termination

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