Labor Law: A five-step plan to addressing poor performance and conduct

January 7, 2023

My most often asked question when a client calls with an issue about an employee is, “Why is this person still working there?” I hear stories of poor attendance, aggressive and abusive behavior, harassment, lack of effort, lack of performance, and insubordination — spanning years — and yet there are glowing performance reviews and scant counseling in the file.

Why does this happen?

In general, managers are too nice, and they dread having a conversation with an employee about something negative. So the manager does nothing but get frustrated with the employee. And the cycle continues.

Too few managers are properly trained on how to manage people. They rise up to management because they were successful at their skill — computer science, accounting, health care provider, financial adviser, salesperson, cashier. Whatever it is they were good at, they are now managing people doing that work.

Step 1 — Set employees up for success. This means setting clear expectations and giving employees the tools they need to successfully do their jobs. This could include software, equipment or training. You can’t hold employees accountable for expectations that haven’t been set, and if they weren’t given every opportunity to be successful.

Step 2 — Determine what’s on the menu. When I train managers, we talk about the “menu” of options available to use in any given situation. Managers need to know their employer policies so that they know what options are available. These might include verbal coaching, written counseling, written warning, performance improvement plan, final written warning, demotion, suspension, etc. Each organization has a different menu.

Whenever something happens that makes you think twice — that something is wrong or off — that’s the time to do something. What you do depends on the severity of the situation within the confines of the menu.

Step 3 — Determine what to order on the menu depending on the situation. There are three categories of actions: Freebie, progressive and what I call the “Big Kahuna.” Freebies are actions that are verbal and not documented. If you make a decision to give a freebie — you’ve made a calculated decision that this will not be useful if you plan to move to more progressive discipline.

“Progressive” is the more common early stages of discipline that include verbal counseling (that is documented in your file), written counseling, written warning or a performance improvement plan. The “Big Kahuna” is usually a final warning or termination.

You are usually not required to give “progressive” discipline for serious offenses, such as harassment, bullying or workplace violence. Even on a first offense, serious situations require serious actions. Do not retain an employee who engages in violence, threats of violence, harassment or workplace abuse.

Step 4 — Document properly. If it isn’t in writing, it didn’t happen. Documentation without a conversation (aka “papering the file”) is meaningless. A conversation with an employee without documentation is meaningless. The purpose of documentation is to have a record of the conversation you had with the employee about the concerns. You should meet with the employee face to face or virtually and discuss the issues.

Be specific, outline the expectations and then the consequences for failure to improve. You will then put all that same information in a document that is provided to the employee. Put the date and your name on the document. Do not use any acronyms in the document. For example, I see too often, “Sally met with the division director about the CTE and then failed to use the RXY.” Use real names and real words.

The document needs to stand the test of time if the parties to it were not available. I read an undated memo the other day: “I met with Joe …” This random document in the file had no name and no date.

The document should need no additional explanation. If it has a signature line, then make sure it is signed. If it doesn’t have a signature line, make sure you can demonstrate you actually delivered the document to the employee. If terminating an employee, documentation in the file should explain why the employee was let go, but this does not need to be given to the employee.

Step 5 — Don’t do nothing. Use the 48-hour rule. Within 48 hours of having a concern about an employee, do something. Take some action. Only order what’s on the menu. Do not stray from what your organization’s policy provides for performance management, which should include termination on a first offense of serious misconduct.

Start the new year with a commitment to address employee issues early and often.