by Paul S. Tagatac
Every employer has had to deal with an employee who has performance issues, such as a bad attitude, poor attendance or problems getting along with co-workers. In this article, I discuss basic considerations that employers should follow when dealing with performance issues.
I. ACTIVELY MANAGE WITH A POSITIVE APPROACH
Experienced employers understand that performance problems do not improve, but rather deteriorate over time if ignored. Therefore, employers should always respond promptly to employee performance issues with the intention of taking corrective action.
Instead of immediately disciplining the employee, however, consider the following steps.
Communication is the key for any corrective plan. Meet with the employee as soon as possible to discuss the nature of the problem and how it may be affecting the company. The goal for this meeting should be to develop a solution for the problem. At this meeting, it is important that the employer encourage the employee to participate in developing that solution.
A. Establish clear performance expectations and follow up with the employee to ensure that these expectations are met.
B. Acknowledge an employee’s positive performance, and also inform the employee when his/her performance does not meet expectations.
C. Solicit and listen to the employee’s ideas for improving performance.
II. KNOW THE LAW
Employers must have at least a basic understanding of general principles of employment law and know the difference between protected activity and inappropriate behavior.
III. BE CONSISTENT
Employers are always amazed to discover how much employees know about the discipline and treatment of their co-workers. Employers should always treat their employees in a consistent manner. Inconsistent treatment of employees is one of the most common causes of poor employee morale and often provides the basis for employee lawsuits.
IV. DOCUMENT PERFORMANCE ISSUES
It is critical for employers to consistently document instances of poor performance. Managers often find it difficult to “criticize” an employee’s performance. The performance evaluation process should be viewed as an opportunity to improve the employee’s performance by pointing out any weaknesses—and encourage ways to improve upon those weaknesses.
Employers should be careful not to inflate performance appraisals when routinely reviewing employees. It is very difficult to successfully claim that an employee was terminated for poor performance when he or she has received satisfactory or excellent performance appraisals in the personnel file.
Do not wait until several weeks after an incident occurs before you document the incident. Since documentation will be analyzed during litigation, it is important to be as accurate as possible in recording events that impacted the employee’s termination. Also, employees may sometimes argue that their termination was based upon retaliation for having filed a lawsuit or a complaint against the company. It is a much better defense for the company to have documentation of improper performance prior to the employee’s complaint or legal action.
Employers frequently use e-mail to document performance issues. It is critical to remember that e-mail communications are discoverable in a lawsuit. This is true even for e-mails between the Human Resources Department and the employee’s supervisor. Do not send an e-mail regarding an employee if you would be uncomfortable including that e mail in the employee’s personnel file—and train your managers to do likewise.
V. INVESTIGATING ALLEGATIONS OF MISCONDUCT
Conducting an effective workplace investigation is essential when an employer receives information indicating that discrimination, theft, fraud, violence, drug abuse, sexual harassment, stalking or other wrongdoing has occurred in the workplace. An employer must respond quickly and appropriately when such issues arise in order to properly address the problem—and avoid significant legal liability.
A prompt and professional investigation into alleged misconduct can save a company from a costly lawsuit, and also boost employee morale and prevent further occurrences. Conversely, a poorly conducted investigation can expose the company to potential litigation and lost productivity. This is especially true for harassment and discrimination claims. Every employer should have a written policy that instructs employees to promptly report any claims of harassment or discrimination to management and outlines the general procedure the employer will follow for investigating such claims.
VI. OVERRIDING PRINCIPLES
A. Fairness: The investigation into any alleged employee misconduct should be conducted in a fair and unbiased manner. Employees should feel that their complaints are taken seriously and that the company will take prompt remedial action if necessary.
B. Completeness: Employers should collect information from anyone who may have information regarding the alleged misconduct. The employer may then assess the information gathered.
C. Communication: The investigation should afford an employee alleged to have committed misconduct a sense of due process, even though it may not legally be required. At a minimum, employers should provide employees with the opportunity to explain their side of the story. The Fifth Amendment of the United States Constitution and state law require that public employees must be given advance notice and an opportunity to be heard before any disciplinary action is imposed.
D. Avoid Liability: The goals of conducting effective investigations include gathering as much information as possible to appropriately discipline employees and avoid legal liability. But it is equally important to avoid liability for conducting improper, incomplete or ineffective investigations. Keep in mind that the prevailing law from the U.S. Supreme Court permits employers to assert an affirmative defense against sexual harassment claims based on the reasonableness of their responses to possible incidents of sexual harassment in the workplace.
Moreover, an employer may be held liable if a perfunctory or poorly handled investigation results in an employee subsequently committing an act of violence against another employee or customer.
E. Confidentiality: The facts gathered during an investigation should be kept confidential and only disclosed to management employees who have a need to know those facts.
Please contact Attorney Paul S. Tagatac at Michelson, Kane, P.C., at 860-522-1243 if you have any questions regarding these, or other, employment issues.
Michelson, Kane, P.C.
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