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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