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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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Substandard job performers sometimes use an offensive strategy of intimidation to fend off negative consequences. Rather than appearing defensive or apologetic for known performance shortcomings, their “kick up sand” strategies keep others on the defensive. When substandard job performers become aggressive, the best defense is to establish a written and verbal communication trail to focus on that individual’s performance problems and eliminate the intimidation.
Be aware of ways a substandard performer can intimidate others. “Sometimes the threats are veiled or [it is implied] that the individual has an attorney or may be keeping track of any perceived offenses from co-workers or his supervisor,” says Nicole Minkow, senior employment counsel at Pearlman, Borska & Wax in Encino, Calif. “Other times, it’s a bit more direct. The employee may carry a ‘little black book’ around and let everyone know it’s a journal documenting when he or she feels mistreated. Or, the employee will tell co-workers outright that he intends to sue them and hold them personally liable if he feels mistreated.”
When a substandard performer sees that his performance may get him on probation or fired, he may complain about others’ conduct when the real issue is his performance, Minkow notes. “It’s critical that you take back control.” Do that by “documenting the employee’s behavior and actions.”
On the Record
People skilled at deflecting attention from shortcomings and creating drama every time their work is criticized get away with this behavior because no one wants to confront them. Co-workers and supervisors start to avoid and work around them. On they go, year after year, receiving “meets expectations” performance reviews without progressive discipline. Their personnel records indicate no particular problems or performance concerns.
Eventually, however, the performance and behavior can no longer be ignored due to low morale among the rest of the staff. Once the blame gets aimed where it belongs—at the substandard performer—the individual may go on the offensive and invoke the services of a plaintiff lawyer. It could be argued that the individual is a victim because the staff is clearly cutting a swath around him, withholding key responsibilities from him and not giving him a chance to excel in his role.
The employee may claim that the lack of opportunity is occurring because the company, and in particular this individual’s supervisor, is discriminating against him because of age, race or another protected class. It’s common for a discrimination claim to surface from a lackluster performer with a negative attitude who is actually the cause—not the recipient—of the problematic work environment.
To prevent this from happening, or to protect the company once it does, the immediate supervisor, the department head and the HR representative must conduct an investigation into the team’s allegations. First, hold a group meeting to discuss everyone’s differences, grievances and allegations, including those from the substandard performer. Follow up, if necessary, with individual investigatory meetings, then schedule a group meeting to share what you have learned and reset managers’ expectations.
The day before the final group meeting, inform the substandard performer, as well as those most affected by his behavior, of your findings and let them sleep on it. Make sure all involved understand the other parties’ sides of the story—the “what” of the problem—so that at the meeting the next day, they can focus on the “how” of making the situation better.
Depending on what you learn during your investigation, you have the opportunity to issue “letters of clarification” to recap managers’ expectations for each individual and dispense documented corrective action.
With everyone getting a fresh start and with the written record in place, the individuals have an opportunity to reinvent themselves. In addition, if anyone violates the agreement outlined in the letters of clarification, then those letters can be attached to future formal corrective action notices as proof that the individual violated the commitment that he or she made to the company and to the rest of the team.
Resetting the Tone
So far, you have done what is necessary to protect the company. The individual may need formal corrective action in addition to the letter of clarification, emphasizing the following:
“We’ve brought to your attention a number of performance deficiencies that we consider serious, and we’re holding you accountable for bringing your performance up to an acceptable level. As a result of the ongoing performance concerns, you will be receiving corrective action in addition to the letter of clarification that you received with everyone else on the team. If there’s any training you require, it’s your obligation to let us know what you will need to meet performance expectations in the future.”
These steps will cement the company’s concerns in writing, thereby affording the problematic performer with workplace due process in the form of documented corrective action.
“Remember not to over-inflate that individual’s annual performance review,” Minkow adds. A “score showing that the individual didn’t meet expectations for the entire year may be appropriate to reflect the ongoing performance and conduct problems that this individual caused.”
Management now has control and can mitigate this individual’s negative influence on the rest of the team. “And, should a lawsuit ultimately come your way, it will be on your terms,” Minkow concludes.
Falcone is an HR executive and has written numerous books, including101 Sample Write-Ups for Documenting Employee Performance Problems: A Guide to Progressive Discipline and Termination (AMACOM/SHRM, 2010).
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