KEY TAKEAWAYS

• Actively manage with a positive approach

• Know the law

• Be consistent

• Document performance issues

• Take appropriate remedial action

It is unavoidable. Despite an employer’s best efforts when hiring, every employer has to deal with employee-performance issues, such as bad attitude, poor attendance, or problems getting along with co-workers. In this article, we provide critical reminders for employers to follow when dealing with performance issues.

I. ACTIVELY MANAGE WITH A POSITIVE APPROACH

Experienced employers understand that, if ignored, performance problems do not improve but rather deteriorate over time. Therefore, employers should respond promptly to employee performance issues with the intention of taking corrective action.

Instead of immediately disciplining the employee, however, employers should 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 of this meeting should be to develop a solution to the problem. At this meeting, it is important that the employer encourages the employee to participate in developing that solution.

We recommend that an employer and supervisor establish clear performance expectations and follow up with the employee to ensure that these expectations are met. An employer/supervisor should also acknowledge an employee’s positive performance and inform the employee when his/her performance does not meet expectations. And an employer/supervisor should take the time to solicit and listen to the employee’s ideas for improving their own performance (this may include providing the employee with additional support, guidance, resources, tools, or relevant training).

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. This applies to Human Resources personnel as well as anyone acting in a supervisory capacity. Supervisors act as the company’s first line of defense.  Employers should be sure that all their supervisors understand when they need to bring an issue to the attention of upper management and/or Human Resources.

III. BE CONSISTENT

Employers are often amazed to discover how much employees know about the discipline and treatment of their co-workers. Employers should be mindful to treat their employees in a consistent manner. An employer’s inconsistent treatment of employees, even unintentionally, 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 to 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/she has received satisfactory or excellent performance appraisals.

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. Contemporaneous records are an employer’s best defense in future litigation. 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 e­mail in the employee’s personnel file — and train your managers to do likewise.

V. INVESTIGATE 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, or other wrongdoing has occurred in the workplace. An employer must respond quickly and appropriately when such issues arise to properly address the problem — and to avoid significant legal liability.

A prompt and professional investigation into alleged misconduct can save a company from a costly lawsuit and boost employee morale and prevent further occurrences. Conversely, a poorly conducted investigation can expose the company to potential litigation and send a message to its employees that it does not actually take raised complaints or concerns seriously. 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

1. 1. 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.
   2. Completeness: Employers should collect information from anyone who may have information regarding the alleged misconduct. The employer must then assess the information gathered and determine what appropriate action(s) should be taken.
   3. Communication: The investigation should afford any employee alleged to have committed misconduct a sense of due process. At a minimum, employers should provide employees with the opportunity to explain their side of the story.
   4. Avoiding Liability: The goals of conducting effective workplace investigations include gathering as much information as possible to appropriately address employee concerns, implement discipline and corrective action as necessary, 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.

If you have questions about how this impacts your business, please contact:

• Paul S. Tagatac
• Caroline J. Berdzik
• Scott R. Green
• Or any other member of the Employment and Labor team