Disciplining Problem Employees Fairly and Legally

Introduction: Employees as Both Resource and Liability

It is often said that the human aspect of any business is its single greatest resource and its single greatest liability. Without employees, no deliverables would reach the customer and no ideas would ever be generated or come to fruition. Yet, conversely, in any business where others are employed, the potential exists for individuals to act in ways that are disruptive and contrary to smooth operations and ideal productivity. Employers and managers frequently cite this as one of their greatest workplace challenges.

Problems arising from employee actions can include anything disruptive in the workplace — for example, excessive and repetitive tardiness, frequent absenteeism without good cause, inappropriate language and behavior, inability to get along with other employees or management (Kushnir, 2008), poor work habits, poor hygiene or dress (Gudgin, 2010), collusion with other employees to incite turmoil or elicit unwarranted changes, and even something as extreme as fraud, theft, or workplace violence (DelPo & Guerin, 2010, p. 25). The problem lies in the fact that such employees often engender concern among coworkers and customers, reduce productivity, represent the company's professionalism poorly, and overall create a poor working environment for all (Gudgin, 2010). This paper discusses how to discipline problem employees fairly and legally — either to help them become better employees in the future or to terminate their employment when that is warranted.

Termination Is Rarely the Goal

There is recourse for employers with regard to terminating an employee if there is legal cause to do so, but employers often feel constrained by wrongful termination laws and fear of reprisal. For managers and owners, fear of wrongful termination suits is high on the list of reasons why they may be reluctant to terminate an employee. Yet there are several scenarios that will support an employer in any lawsuit, provided he or she does not violate any employment laws during the employee's tenure or upon termination.

Employers and managers may feel even more trapped when termination is not the desired outcome — for instance, if the employee is highly capable but struggles to get along with others (Kushnir, 2008), if the employee has a history of being an effective and positive contributor to the company, or if the employee is known to be experiencing personal stresses that may be influencing negative behaviors. There are many scenarios in which firing is simply a last resort because the employee is valuable or has been valuable in the past and is expected to be again.

One of the most compelling business reasons for not firing an employee is the considerable investment the employer has already made. The recruitment process is arduous. Selecting this employee over all other applicants was an extremely difficult decision. Significant time, money, and energy have been invested in training that employee, and it will take precious resources to repeat that entire process for a replacement. Therefore, the more productive question is often not how to fairly terminate an employee, but how to use appropriate and fair progressive discipline to bring the employee back into alignment and allow him or her to again become a positive and productive member of the organization.

Most experts agree that the most important step is to stop bad behaviors before they worsen or poison the work environment. Above all, action must be taken. The consequences of inaction can be foundational to the health of the business, and problems will not likely resolve themselves (Whipple, 2010). As DelPo and Guerin note, "Unless you intervene, the employee may not know that his or her behavior or actions are unacceptable. Your company will suffer the direct consequences of the employee's actions — reduced productivity, quality control problems; dollars, opportunities, or customers lost; or worse" (2010, p. 106).

Investigation and Early Intervention

Even if a manager believes that not responding is best because problems tend to work themselves out, this is rarely the case. Even when a problem is so minor that no direct action needs to be communicated to the employee, the manager must still look into the issue and formulate a response. In other words, no problem is so small that it does not warrant examination. There are legitimate cases where action by the employer will make the problem worse — one example might be minor non-work-related interpersonal friction between employees, which often resolves itself over time through emotional intelligence and further communication. Even then, the employer should remain aware of the situation in case it escalates or repeats involving other employees (DelPo & Guerin, 2010, p. 11). As Whipple explains, "Managing these dilemmas requires knowing the exact moment to intervene and doing so in a way that preserves trust with the individual and the group. Once you let an employee get away with bad behavior, it becomes harder to address the next time, and so on" (2010, p. 114).

As Ingham makes clear, the most important initial hurdle is a thorough and well-documented investigation. Without being fully informed regarding the nature of the misconduct, a manager or business owner has little grounds for taking action. First, the employer must conduct a fact-finding exercise, preferably carried out by a party who is not ultimately responsible for disciplinary action — if the size of the business allows this. The employer must determine whether any rules or laws have been broken, whether there is proof, and in general must establish whether the reported event occurred, when it occurred, who was involved, and what steps to take next. Second, the employer must review the information and determine a further course of action commensurate with the seriousness of the misconduct.

Disciplinary actions can range from an informal meeting or coaching session, to a written warning, a policy change distributed to all employees, a formal disciplinary hearing, or even a legal investigation. Termination can be the outcome, as long as it is commensurate with the offense. These ideas are also supported by DelPo and Guerin, who state that "managers deal with first-time problems by administering a verbal coaching or warning, then escalate to more serious measures if the problem continues or the employee develops other problems" (2010, p. 106). Both Ingham and DelPo and Guerin emphasize that disciplinary actions should not be undertaken without stakeholders first reviewing applicable laws and regulations and the company's own disciplinary policies (Ingham, 2010; DelPo & Guerin, 2010).

Conclusion

Employees are indeed the greatest resource an organization has, and they need to be nurtured and protected. Ignoring misconduct by any one employee can undermine the entire trust culture of the business and leave others feeling unsupported. Allowing a good or even marginal employee to take advantage of the situation and act inappropriately causes harm — both to the business and to the individuals involved. That employee may actually be acting out to receive attention or to prompt a change that genuinely needs to occur. In the worst case, the employee may simply need to move on to an environment where they are a better fit, where they feel more invested in the goals and culture, and where they contribute rather than detract — or to a place where, for whatever reason, the problematic behaviors do not arise.

Legitimately, there are some individuals who struggle to work effectively with others and will be problem employees wherever they go, but they are few and far between. Most people are fundamentally good and may simply need more guidance to address behaviors that are troubling to others. To a large degree, it is the role of a manager to help individuals do exactly that.

References

DelPo, A., & Guerin, L. (2010). Dealing with problem employees: A legal guide (5th ed.). NOLO Press.

Gudgin, S. (2010). Be smart to avoid a legal scrum. Caterer & Hotelkeeper, 200(4642), 33. Retrieved from EBSCOhost.

Ingham, D. (2010). Clued up. Works Management, 63(8), 12. Retrieved from EBSCOhost.

Kushnir, S. (2008). Managing the star performer no one wants to work with. Certification Magazine, 10(10), 38–39. Retrieved from EBSCOhost.

Whipple, R. T. (2010). Stop the enabling. HRMagazine, 55(9), 114–115. Retrieved from EBSCOhost.