The most common challenge that our clients face involves navigating how to correctly handle the performance failures of protected-class employees. Whether it is the decline of a longtime, senior employee’s performance, the frequent leave requests of a chronically ill worker or the erratic behavior of a suspected substance-abuser, these situations can be a huge headache and can affect performance and productivity across the workplace.
These challenges can also be excruciating enough to make any manager want to simply avoid dealing with them forthrightly, and that is not a good strategy at all. So here are the five steps we talk our clients through to ensure their actions in these difficult situations are compassionate, legally compliant and fair.
1. Know your protected classes – A protected class employee is someone who cannot be discriminated against because of their legal status. For example, it is illegal to discriminate against an employee or potential employee – with regard to their hiring, firing, promotions, demotions, pay or other working conditions – based on their age (40 and over), disability (which broadly includes many physical and mental ailments), national origin, race/color, religion, sex/gender, pregnancy, citizenship, military service, genetic information or family status. Some states have additional protections for things such as sexual orientation. If you assess that your problem employee is in a protected class, proceed with extreme caution, lest any action you take be the basis for a discrimination lawsuit or enforcement action.
2. Demonstrate and document performance failures – All too often, a client presents us with a problem employee whom they have perhaps coddled or made excuses for – or just ignored – over time. Often this means the employer has not directly addressed performance problems in the past, either in conversations, performance evaluations or when determining bonuses and raises. When this happens, protected class employees often support their discrimination claims by saying “no manager ever told me my work was sub-standard.” This is why we always recommend, as a matter of course, discussing performance successes and areas for improvement with employees and documenting those conversations.
Whether or not you have problem employees, as a manager you need to carry out four basic responsibilities: A) make sure employees know what is expected of them on the job; B) ensure they have the tools, training and opportunity to do what you expect of them; C) provide real and meaningful feedback on their performance and, if their performance is not satisfactory, coach how they might improve; and D) clearly explain the consequences if they fail to improve. Again, all of these conversations should be well documented and accessible for future conversations and any employment actions that become necessary.
3. Stick to the requirements of the job and the performance issues at hand – You may have an employee who, in addition to being a poor performer, is chronically late, refuses to use new technology or is a negative or threatening presence in your workplace. While you may be tempted to bring up what you suspect is the reason for this – maybe substance abuse, advancing age or possible service-related PTSD – this would be a monumental mistake. If you are like most of our clients, these are not the reasons you are considering termination. Rather, it is because of the employee’s performance on the job. This is a critical distinction because if your employee feels she is being adversely impacted because of her protected status, she is more likely to sue you. So don’t help them make their case. Keep your conversations limited to the duties of the job and your employee’s ability to perform those duties satisfactorily.
4. Consider reasonable accommodation – Often a problem employee can be turned around with some simple workplace accommodations, such as a reduction in hours, a shift of duties, a temporary leave of absence, or a referral to an Employee Assistance Program. These would be considered reasonable accommodations that your employee and a court of law would view favorably. But remember, you cannot impose a workplace accommodation as that could be viewed in the legal context as treating the employee differently from his or her peers. Instead, our best advice is to ask the employee if a reasonable accommodation exists or, alternatively, you can make some suggestions. For example, a pregnant employee might want and need a reassignment of duties if her normal job creates an undue burden or risk to her pregnancy, whereas another expecting mother may neither need nor welcome a change of duties. That decision should always rest with the employee. In the end, your goal as a compassionate employer is to explore all opportunities to aid and assist the employee to improve his or her performance.
5. When separation is inevitable – If all of the above steps have been followed, by the time you need to terminate a problem employee he or she will likely already be well aware that this is a possibility. No one likes surprises and a surprised (and perhaps humiliated or desperate) ex-employee poses a great risk to you legally. In cases where, despite your efforts, you suspect the employee will seek legal action against you, and you feel the situation could have been handled better on your end, you may want to consider a separation agreement or some other way to separate amicably. Often we recommend providing a financial severance to the terminated employee, extending health coverage for a period of time, providing a positive reference (if you ethically can provide one), or giving the employee the opportunity to represent the termination as a resignation without the fear of jeopardizing his or her unemployment insurance claim. Offering assistance measures like these can soften the blow and also provide an opportunity to, in exchange for the assistance you provide, require the employee waive the right to sue for financial remedy under federal or state anti-discrimination law. The more you can offer, the more likely the employee will be able to focus on his or her future rather on the pain that the termination has caused. And a terminated employee who is treated with kindness and respect is more likely to quickly view his or her future positively.
Terminating employees is never a positive experience. Few if any managers relish the thought of firing someone, particularly an employee with problems that extend beyond the workplace. But if you follow these five steps, you can go a long way toward ensuring that your actions are compassionate, compliant and fair – and thereby have your best chance of avoiding legal action.
By Claudia St. John – SPHR, President Affinity HR Group
