KemLaw

According to a variety of sources, 20% of employees at any time may qualify as problem employees. Sadly for many managers, those “problems” can take up to 80% of the manager’s day.

And allowing “problem” employees to remain employed imposes significant costs, including low productivity, time spent dealing with performance problems that could better be spent elsewhere; and a negative impact on the morale of others.

So what’s an employer to do?

Employers need to find an effective way to avoid devoting excessive management time to “problem” employees without incurring litigation.

And the risk of litigation is rising steadily in these matters as is the cost of defending against these claims. What’s more, given the current political climate, juries are increasingly sympathetic to employee claims of wrongful discharge.

One tool that many managers and employers find to be helpful is a formal and at least annual employee evaluation. These evaluations are helpful because they give employees the feedback they need to improve performance and correct deficiencies.

Suppose there is an ongoing performance issue?

For these cases performance counseling and performance improvement plans are often called for. Here are a number of things to remember in these cases:

1. For a first time performance problem, or a minor violation of company policy, or when there have not been other issues with employee performance/conduct, managers typically need only counsel employees in a timely and clear manner.
2. Any counseling (sometimes also referred to as verbal warning) given to employees should be done in person and is best memorialized in writing with an acknowledgement of receipt by the employee and an opportunity to respond.
3. Minimize (or avoid, if possible) having non-privileged discussions about employee performance issues via e-mail or otherwise. If written communications occur, JUST STICK TO THE FACTS! Do not provide any extraneous personal commentary or opinions.
4. For recurring performance problems, or for employees with multiple performance deficiencies, or when counseling has not resulted in correction, performance improvement plans (“PIPs”) are typically warranted, in lieu of or in addition to disciplinary action.
5. PIPs should be prepared in consultation with appropriate higher level managers and Human Resources.
6. PIPs are typically not employed if there are only issues of misconduct that need to be addressed, though any PIP that may otherwise be issued to address performance deficiencies could also reference any conduct that must be corrected.
7. PIPs are typically issued to give employees a “final chance” to correct deficiencies prior to taking more significant adverse action (i.e., suspension/discharge).
8. PIPs should describe any past history of counseling and disciplinary action taken against the employee, identify each continued area of deficiency by providing specific examples of the same, identify what the specific expectations/goals the employee(s)needs to accomplish going forward and the time frame (generally 30 to 60 days) to accomplish the expectations, and the consequences for failing to improve. Employee must be allowed to file a response.
9. Copies of the PIP should be provided to the employee and the employee must acknowledge receipt of the PIP, or if the employee refuses to sign, the manager must acknowledge that the employee has refused to sign but has been given a copy of the PIP.

If you are an employer and would like to learn more about best hiring and firing practices, you can find more information here: http://info.kemlaw.com/the-employment-relationship/

Managing employees is a challenge for every employer. The attorneys at Kainen, Escalera & McHale each have over 20 years of experience in employment law matters and would be pleased to help you if you have questions regarding the law. Please contact us if we can help you.

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