How to Avoid Employment Litigation

On January 7, 2013, in Heather Bussing, HRExaminer, Policies, by Heather Bussing

How to Avoid Employment Litigation - by Heather Bussing - HRExaminer

Progressive discipline policies rarely improve performance and just lock everyone into a system that prolongs the frustration and damage.

You have that employee. She does an okay job when she knows someone is watching. She’s perfectly capable. But she would rather stir up trouble and complain about unfair treatment. She is always the victim; nothing is ever her fault. You counsel her to focus on her work instead of everyone else. That just fires her up.

Next she comes in with a doctor’s note so she can take time off for stress. You give it to her. She comes back and complains that you changed her job while she was gone. Then it’s apparent she has spent a little too much time on the internet because she starts sending memos saying she is being discriminated or retaliated against for complaining about her treatment.

Her department is not getting anything done because everyone is defensive and frustrated. The days are spent having meetings about what’s going on. People start arguing about how they are arguing, who is misrepresenting the facts, and who is being unfair. It has to end.

Senior management is worried about a lawsuit and wants to document the file. Or there’s a union contract that requires termination for cause, and no one can figure out what “cause” really means. Or there’s a progressive discipline policy that requires a series of meetings, counseling, and multiple chances for improvement.

So the company is held hostage by an unproductive employee who is interfering with the morale and productivity of an entire department.

What to Do

Listen. First, try to figure out what’s really going on. It’s almost never actually about what it appears to be about. Sometimes it’s a lazy or difficult employee taking the offensive. Sometimes, the person is going through stress in a relationship, has a sick child or parent, or is dealing with their own health issues. If you think it’s a short term or recoverable situation, figure out how to minimize the disruption at work. Giving time off, reducing hours or duties, suggesting counseling can all help a short term problem. Look at both the symptoms and the cause in forming a solution.

Fire Fast. As soon as you know it’s not just a short term issue and that it’s not going to work out, terminate the employee. This will be sooner than you would like, but really, trust your gut. Ending the drama is a gift to both of you and allows everyone to move on and start over.

Get Rid of Progressive Discipline. Progressive discipline policies rarely improve performance and just lock everyone into a system that prolongs the frustration and damage.

Clarify “Cause.” Being disruptive, interfering with other people’s work, spending more time watching and complaining about coworkers than working, is “good cause” for termination. So if your company only terminates “for cause” make sure your definition of “cause” in the contract or policy manual includes being disruptive.

Don’t Set People Up. Be up front and tell the person he needs to get his work done even if he thinks he’s being treated unfairly, and if he can’t do that, then he will be fired. If it doesn’t turn around quickly, keep your word and terminate. The process of documenting multiple minor infractions and watching someone to come up with more documentation always just makes it worse.

Get Leave Right. If the employee is legitimately entitled to leave for a medical condition or under other statutes like the FMLA, give it regardless of what else is going on. Allow that issue to resolve before terminating. Get advice from an employment lawyer in the state the employee is working on how to calculate and document the leave.

Get Paychecks Right. When you terminate, make sure the final paycheck is right– that it is presented at the time of termination and includes all unused paid time off, along with any other required payments. Wage claims can quickly morph into bigger fights.

Pay Severance in Exchange for a Release. Severance agreements are good for everyone. It gives the employee a financial cushion to find a new job, gives you finality, and can save the company bundles in attorneys’ fees. Do you have to? No. But do it anyway because it will save you stress and money in the long run.

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