Replace the Last Chance Agreement and the Final Written Warning with the Crossroads Conversation

Jathan Janove, J.D. By Jathan Janove, J.D. February 6, 2020
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​Readers of this column know I'm no fan of the oxymoron "progressive discipline." My antipathy extends to last chance agreements, final written warnings and similar "or else" documentation. They're demeaning, dehumanizing and adversarial. They're also counterproductive, both as relationship intervention agents and for claim prevention or defense.

Fortunately, there's a better path. I call it the "crossroads conversation." At whatever point in the relationship it strikes management that the fit may not be right, and that the employee is unable or unwilling to meet performance, attendance or behavioral expectations, it's time for a crossroads conversation.

To illustrate: During his first week of employment, your employee Bob shows up 10 minutes late one day. "Hey Bob," you say, "It's 8:10 and your shift begins at 8. What happened?"

"My dog hid my car keys," Bob says.

"How are you going to solve this problem so we can count on you being here on time every workday?"

"No worries, boss. I'll just hide the car keys from my dog."

Next week, the excuse is the family cat. You're now skeptical that you can rely on Bob to be at work on time.

It's time for the crossroads conversation.

"Bob, I'm concerned. Last week you were 10 minutes late on Wednesday and said you'd take the necessary steps to prevent this problem from occurring again. Less than a week later, you came in at 8:20. I need to rely on you being here 8 to support our customers and your co-workers. If I can't count on you, we'll need to make a transition and you'll need to move on to other employment. What do you think?"

Now you've got Bob's attention. He makes an unequivocal commitment to be on time and says he fully understands that the alternative is his leaving the company. Tell him you'll confirm this conversation in an e-mail or other written instrument. Instead of issuing a final warning or last chance agreement, you'll write what I call a same day summary.

Now let's go back to the first time Bob comes in late. What if instead of making a commitment to change, he pushes back? "I don't know that I can consistently be on time. My dog really enjoys hiding my car keys."

This is not time to issue the "first verbal warning." Instead, itis crossroads time. Bob has essentially told you that you can expect repeat behavior in the future. "If that's the case Bob, I don't see how you can remain at our company since I have to rely on you being here every workday at 8. I think it may be time to end this relationship. What do you think?"

In my experience, Bob will either:

  1. Agree, and leave quietly.
  2. Request another chance, in which case you do a same day summary similar to the one above.
  3. Continue to resist making the necessary commitment, in which case you end his employment and write a same day summary for his personnel file, capturing this last conversation.

What are the differences between the crossroads approach and the traditional progressive discipline or final warning approach?

  1. The crossroads conversation is far more respectful. It's not imposed. It simply captures, first orally, then in writing, a real-time communication between manager and employee.
  2. It is timely and responsive to actual circumstances. You don't waste time and energy on step-by-step discipline. The focus remains where it should be: Is there an intervention that will correct the problem or is it time to say goodbye?
  3. Because of the respect and clarity, it maximizes the likelihood that if Bob is capable of making the necessary change, he will.
  4. Because of the respect and clarity, it maximizes the likelihood that if Bob isn't capable of making the necessary change, he'll leave quietly—no fuss, claims or litigation.
  5. Especially with HR's coaching, managers are much less likely to go astray with a crossroads conversation. Traditional progressive discipline is rife with places to make serious mistakes.

Lawyers React

Employment law attorneys had some concerns about the crossroads conversation. "Although I generally agree with you that a simple summary is best for everyday performance issues," said Sean Driscoll, an employment attorney in Portland, Ore., "I'm concerned that your approach could prove problematic when employee behavior involves legally protected activities or statuses."

For example, in the case of sexual harassment, Driscoll believes that "often the best legal protection is a 'final written warning' or similar formal warning that tells the offending employee that any future misconduct will result in termination. The warning sets clear expectations for the offending employee and shows the victim (and potential jury) that the company took steps designed to halt the offending conduct (a defense to liability in many cases)."

The attorneys emphasize that managers will need to be well-trained on when and how to conduct a crossroads conversation, how to write a good same day summary, and when to consult HR. HR will also need to know when to consult an employment attorney.

Former employment law attorney and now assistant director and HR leader at Salt Lake Legal Defender Association Charlotte Miller finds it interesting that the lawyers are concerned that the crossroads approach will require training. "The current approach requires training, at which we have mostly been unsuccessful because the training is geared toward reducing liability rather than solving a problem. Managers have learned that there are magic words, that they have to stick to some script, or they will make a mistake. If we could trust managers to follow a concept and use their own genuine approach, we would be in a better place. Crossroads feels like an attempt toward that trust and genuineness."

Paul Buchanan, an employment attorney who represents both large companies and individuals in employment disputes, notes, "The real point in most cases is to communicate honestly and directly, and to be able to prove that you did. The more natural a supervisor feels that that process can be, the more likely it is to actually occur. So, I'm largely with Jathan on this approach.

"When I'm defending a large company in an employment case, my task is usually to demonstrate that the supervisor who made the challenged decision was acting in a principled, humane and patient manner and for legitimate business reasons. A record of direct, honest communication helps me to make that case—whereas  punitive, bureaucratic-sounding forms can cut the other direction."

Takeaway

The attorneys raise good points. Training needs to be thorough. Crossroads conversations and same day summaries need to be coordinated with HR. And in especially tricky situations, employment law counsel needs to be consulted.

Having coached the crossroads conversation and same day summary approach in numerous circumstances, however, including complex and challenging ones, I've found it to be a much better approach than conventional discipline, both from a claim prevention perspective and from a "human" perspective. I hope you do too.

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