Why is it that so many managers tend to look the other way when attempting to deliver corrective feedback to their employees?
We know the path of least resistance is avoidance, but in truth, problematic workplace issues rarely fix themselves. Instead, they build up over time, causing resentment and frustration until a proverbial straw is broken and then, boom! In most cases, it's a manager who wants an employee fired. And because there's been little if any record of substandard job performance or inappropriate workplace conduct, HR denies the request to terminate and suddenly becomes the "bad guy" for not letting the manager terminate the worker causing the issues.
In reality, shy of gross misconduct matters like theft, embezzlement, forgery or fraud, requests for "summary terminations" should be denied because of a failure to accord workplace due process.
"That means that, if challenged, the termination will likely not withstand legal scrutiny, and compensatory damages for wrongful termination may trigger if pursued legally," said Jeff Nowak, an employment attorney at Littler in Chicago. "Worse, the wrongful termination claim can then be used to leverage discrimination claims against the employer based on the terminated individual's protected status—age, race, disability or the like."
Therefore, any request by a manager to fire an employee for anything performance-related that doesn't meet the terms of a summary termination should be denied. In essence, the manager didn't hold the employee accountable in a documented form, which would otherwise substantiate the termination request.
'But They're At-Will'
The at-will argument belongs in the courtroom, not the workplace. Technically, the employment-at-will affirmative defense is used at the hearing stage to win a summary judgement (or immediate dismissal) of the case.
"Plenty of wrongful termination and discrimination claims will survive summary judgment (dismissal) and proceed to trial," said Nowak. "During the trial phase, you must demonstrate just cause for the termination. And many judges and arbitrators will tell you that if nothing was written down, it probably never happened."
In short, without any documentation to defend the company's termination of the plaintiff (your ex-employee), your organization will likely need to settle out of court, which could be exceptionally costly.
Of course, training people managers on how to deliver bad news to employees about their performance is never easy, but it's definitely required.
"You have to give corrective feedback to help employees improve and master their craft," said Merrick Dresnin, chief people services officer at Cote Family Companies in Nisswa, Minn. "As we learned in elementary school, it's not what you say but how you say it that counts. And here's the trick: If you can help employees understand that changing their performance or conduct is in their best interests, you'll have a much greater chance of gaining buy-in and fixing the problem once and for all."
Let's consider an example that HR should share with the company's people managers. Assume an employee garners far too many complaints about his behavior and conduct. Customers complain. Co-workers complain. He tends to be moody, and you never know which version of this individual is going to show up day to day. In fact, his attitude may waiver significantly from hour to hour. Here's how to approach the matter from a coaching perspective, done in private.
"George, I wanted to meet with you privately in my office to review something with you. Let me open with a thought: The most important decisions about your career happen when you're not in the room. That's the case for you and me and everyone else in the work world. I'd like to discuss something you may not be aware of that could potentially hold you back throughout your career. I want to work with you to impact what's being said about you when you're not there to defend yourself. Do I have your permission to share details?
Okay, great. First, I wouldn't be doing you a service as your manager if I didn't share with you that, at times, you can come across as aggressive and confrontational. I'm guessing you've heard that before to some degree. This morning we had a complaint from one of our longer-term clients about your tone during your phone call. I'll ask you about that separately in a few minutes to learn your side of the story, but for right now, I have to share with you that I believe you may have a perception problem on your hands. It's not about your intentions—it's about how your message is being received. There have been occasions where I've heard your co-workers mention the same thing—that you can be aggressive and sarcastic at times or otherwise come across as angry, and people don't really know what to expect from you minute to minute because your mood can change so quickly.
There's no judgment here: I'm simply observing what I'm seeing myself and hearing. Is this something you're aware of?
(Yes, but . . .)
Okay, again, there's no need for defending yourself just yet. I realize there are two sides to every story. But I want you to picture something. When it comes to what's being said about us by those considering our future, there are two constructs that typically come up: the "George . . . and" construct and the "George . . . but" construct. Here's what they sound like: "I know George. He's a long-term employee, knows his stuff and he's really admired by his peers and clients." Likewise, "I know George. He's a long-term employee, knows his stuff, but he constantly has challenges with peer and customer complaints being levied against him."
In the first instance—the "George . . . and" construct—you're ready for broader responsibilities and promotional opportunities. In the second instance, you're stuck where you are with no future career growth in sight. Likewise, your reputation suffers and you're not making the workplace a better experience for others. I can make it safe for you to fix this perception problem. I can have your back while you turn things around for your own sake, making it safe for you to reinvent yourself. I'd like to be that mentor and coach to you so that you can influence what's being said about you. The question is, will you allow me to be that coach and mentor for you? Will you partner with me to fix any perception problems that may potentially hold you back in your career?"
This coaching talk can then end on a positive note with firm expectations—an iron hand with a velvet glove approach:
"George, I'm here to help you. We've got resources to assist you too, including our employee assistance program and tuition reimbursement for any courses or workshops you want to take to help you in this area. But I have to be clear: I'm holding you accountable for your own perception management going forward. In other words, regardless of your intentions, you're going to be held to a high standard of customer service, both internally and externally. You're not required to accept my help, but I have to hold you to the same standards as everyone else.
In short, after our meeting today, we can partner together or not. But any further complaints about your behavior will likely be met with written disciplinary measures. I see tremendous potential in you, and I'd like to be that career influence who helps you overcome something that you may not be aware of. But it's up to you to accept my olive branch. With or without that olive branch, however, your conduct has to change from today going forward. What are your thoughts?"
Playing Defense vs. Offense
Not everyone has a heightened level of self-awareness. Your good-faith offer to help George may be rejected. Be careful, though, not to let the employee go on the offensive, which might sound something like this:
"Everyone is being too touchy and overly sensitive. I've got so much to get through and not enough time to do it. I wish these people would just grow up rather than complain to you."
At that point, you can realign your message by saying:
"George, you're going on offense here when you should be playing defense. I didn't ask you to meet with me to hear your complaints about customers and co-workers being overly sensitive. I asked to meet with you because the complaints about you are excessive, and I want to help you strengthen your image among your peers and clients. But this isn't about your complaining about them—it's about their multiple complaints about your behavior. That's why we're meeting right now. I want to help if you'll let me, but my expectations remain firm either way."
Other advice includes staying away from the words always and never in your descriptions. "First, that's exaggerated," Dresnin said. "Second, people will automatically feel judged and defensive if they encounter accusations that they always or never do something." Instead, use phrases like "at times" and "on different occasions," which are more factually accurate and help the listener remain more open to your message.
Constructive confrontation like this is never easy. But aligning your interests with your employee's, offering to serve as a business mentor and coach, and pointing to the benefits of the "George . . . and" rather than "George . . . but" construct could go a long way in helping your employee turn things around. Even if that fails, you'll have made a strong record to include in any future disciplinary action should that have to follow.
Paul Falcone (www.PaulFalconeHR.com) is a frequent contributor to SHRM Online and has served in a range of senior HR roles at such companies as Paramount Pictures, Nickelodeon, Time Warner and City of Hope Medical Center. He's a member of the SHRM Speakers Bureau, a corporate leadership trainer, a certified executive coach and the author of the five-book Paul Falcone Workplace Leadership Series (HarperCollins Leadership and Amacom). His other bestsellers include 101 Tough Conversations to Have with Employees, 101 Sample Write-Ups for Documenting Employee Performance Problems, 96 Great Interview Questions to Ask Before You Hire, and 2600 Phrases for Effective Performance Reviews.