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Here is how HR can help prevent the missteps that could cost your company big in court.
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Avoid workplace land mines with these strategies.
Many well-intentioned managers step on workplace land mines that could have been easily avoided or disarmed. Experienced HR practitioners, who can see these explosive episodes from miles away, wish that they could stand in front of the brigade to steer managers away from the peril that comes with supervising workers. But managers often wait until a land mine has detonated to go to the HR department. To avoid being one of those managers cleaning up after an explosion, familiarize yourself with these common perils:
The pre-emptive strike. Too many managers don’t want to take their problems “outside the family” and share their concerns with HR or some other neutral party. Instead, they hog all the problems and sometimes go as far as pressuring team members not to go to HR to file a complaint—even threatening to fire them if they do.
“That’s a major no-no,” says Ann Kotlarski, senior litigation partner at Seyfarth Shaw LLC in Century City, Calif. “Stating that you will retaliate against anyone who lodges a good-faith complaint with the company’s ombudsman could very well land a supervisor on the sharp end of the investigation spear. Outright termination or at least a final written warning could be warranted, even for a first offense.”
In addition, remember that workers are well-educated consumers. A poor performer may launch a pre-emptive strike over the supervisor’s conduct—typically using terms like harassment, discrimination and retaliation—before the supervisor has a chance to complain about her performance. The strategy is to complain about the supervisor so that any discipline or termination looks like retaliation. Supervisors should run, not walk, to the HR department when they’ve got a performance problem on their hands, Kotlarski recommends.
Talking “off the record.” There’s no such thing. Anytime an employee wants to speak with you “off the record” or in strict confidence, give the following caveat: “I’d be happy to help you, but I can’t keep the matter confidential if it has to do with discrimination or harassment, potential violence in the workplace, or a potential conflict of interest with the company’s operations. In those cases, I’ll have an affirmative obligation to disclose what you tell me to other members of management.”
“Remember,” Kotlarski advises, “once the employee puts you on notice as a supervisor within the company, it’s the same in the eyes of the law as if he or she put the CEO on notice. Should a lawsuit ensue, the plaintiff attorney will argue that the company was placed on notice and failed to act, meaning the supervisor not only speaks for the company but is the company in matters like these.”
Performance vs. conduct. Most managers know to follow the steps of progressive discipline before terminating someone for cause. Issuing verbal, written and final written warnings is the norm in most organizations. “What many managers fail to remember, however, is that the step system outlined in most organizations’ corrective action policies typically speaks only to performance and attendance, not to conduct,” Kotlarski notes. “Conduct-related infractions often result in what’s known as a ‘summary offense,’ or immediate dismissal for cause” (think theft or embezzlement).
In addition, egregious misconduct or insubordination often results in a final written warning—even for a first offense—meaning that supervisors don’t have to put up with bad attitudes and inappropriate public displays of anger or resentment under the three-step corrective process. Instead, they can proceed directly to a final written warning, stating that if the individual ever again engages in inappropriate conduct of that sort, immediate dismissal may result.
Sameness vs. consistency. Many front-line leaders often assume that all infractions have to be treated exactly the same.
“They absolutely do not,” Kotlarski says. “Your responsibility as a leader lies in looking at the totality of events and considering the backgrounds of the individuals involved—tenure, performance record, etc.—to ensure a reasonable outcome.”
For example, sleeping on the job is a serious infraction. But while a recruiter may receive a written warning, a nurse working the graveyard shift at an emergency room’s main desk may receive a final written warning, and an anesthesiologist sleeping during an operation may be terminated without warning. “It’s not the sleeping per se,” Kotlarski explains. “It’s the circumstances surrounding the sleeping that count.”
Land Mine-Free Zone
These workplace wisdoms belong front and center in your management arsenal. Learn to recognize potential land mines and how to avoid or disarm them. Know when to call for reinforcement from the HR department. These tales from the trenches will help you become a more consistent manager and a better company representative—one who leads a drama-free work environment clear of employee explosions.
The author is an HR executive and has written 101 Sample Write-Ups for Documenting Employee Performance Problems: A Guide to Progressive Discipline and Termination
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