Former employment attorney and author Jathan Janove writes for SHRM Online on how to inject greater humanity into HR compliance. Jathan welcomes your questions and suggestions for future columns. Contact him at the e-mail address at the end of this column.
As an HR professional, have you ever had a conversation with a manager where you felt they weren't listening? Recently? Very recently?
Below is a scenario based on interactions HR professionals have told me about in which they felt they weren't being listened to. I asked communication experts Julie King and Joanna Faber, authors of the bestselling How to Talk So Little Kids Will Listen (Scribner, 2017) and the newly released How to Talk When Kids Won't Listen (Scribner, 2021), to provide guidance.
In this scenario, "Lisa" is the company's HR director, "Matt" is the company's IT director and "Jerry" is the problem employee. King and Faber provide the coaching commentary.
. . . . . . .
Lisa's workday began with a visitor, Matt.
Matt opened the conversation with, "Jerry's gotta go!"
He proceeded to give a litany of misdeeds and problems:
- Jerry has been with the company for over 20 years and has never been a particularly good employee.
- He's been on multiple performance improvement plans (PIPs), some of which produced temporary gains, but none that stuck.
- Assigning Jerry to different supervisors hasn't fixed the problems.
Perhaps anticipating Lisa's question "Why now?", Matt answered, "As you know, our CEO recently made a big speech about how times are tough. Sales are down, and we have to cut costs. That includes getting rid of deadwood, which pretty much describes Jerry to a T.
"Plus," Matt added, "I've got another problem. One of our competitors has been targeting people in my department. Two good techs recently left. I think one of the reasons is that people are sick of having to work with Jerry.
"He's wasting our money. He's costing us talent. He needs to go!"
. . . . . . .
King and Faber: To understand why HR conversations such as this can go south fast, it can help to consider what's going on for the HR director when Matt is making his case. Let's listen in on Lisa's thoughts as she listens to Matt:
1. When she hears, "Jerry's gotta go!" she thinks, Oh no, not another hot-headed manager trying to fire an employee. I doubt he's built up the documentation we'd need to do that.
2. When she hears, "Jerry has been with the company for over 20 years and has never been a particularly good employee," she thinks, Here we go, opening the company up to another age-discrimination lawsuit.
3. When she hears, "He's been on multiple PIPs, but none that stuck," she thinks, Well, why didn't you build in some consequences? He's going to claim he had no warning.
4. When she hears, "Assigning Jerry to different supervisors hasn't fixed the problems," she thinks, I bet you don't have documentation for that either.
5. When she hears, "Our CEO said sales are down, and we have to cut costs," she thinks, The CEO likes to focus on the numbers, but he forgets the huge costs we incur as a company when we subject ourselves to employment litigation claims.
6. Finally, when Matt says, "Two good techs recently left. People are sick of having to work with Jerry," she thinks, Well, that's your fault. You created this problem by failing to deal with Jerry appropriately.
With all these thoughts swirling in her head, Lisa responds, "Matt, let me stop you here and save you some time. You can't fire Jerry. You haven't submitted any paperwork, so I assume you don't have a solid record documenting that you told Jerry specifically how he has to improve his performance and what the consequences will be if he doesn't. You know you're supposed to put all that in writing. Company procedures are clearly outlined in the HR manual. I'm sorry, but I can't approve your request at this time."
Which of the following is likely to be Matt's reaction?
A. "Lisa, this has been really helpful. Even though I was dead set on getting rid of Jerry when I walked into your office, you've helped me feel good about putting up with Jerry for the foreseeable future, while I somehow find time to deal with a mountain of extra paperwork. I'm super motivated to make the best of the situation. Thank you so much!"
B. He storms out, fuming to himself and thinking, These HR people are impossible. All they ever do is tell me why I can't do what obviously needs to be done. They're so caught up in their rules and procedures. I'm going to have to find another way to make life miserable for Jerry so he decides on his own to leave. Come to think of it, maybe it's time for me to start looking for another job.
While we'd like to imagine that Matt's response will be "A," most of us would agree that "B" is more likely.
How can an HR director respond helpfully to an unreasonable demand from a frustrated manager?
One important principle we teach in our workshops is that when people are frustrated (or disappointed, angry or sad), the first thing they need is someone to acknowledge their distress and to see things from their perspective. If we start out by responding with arguments and explanations, no matter how logical, we will be met with irritation and resistance. Only after people feel understood will they be open to listening to information and looking for solutions to a problem.
. . . . . . .
How could Lisa apply this principle in this scenario with Matt? Let's replay the scene:
Matt: Jerry's gotta go!
Lisa: Sounds like there's a big problem. Tell me more.
Matt: Jerry has been with the company for over 20 years, and he's never been a particularly good employee.
Lisa: Oh, so you've been dealing with this for a long time!
Matt: Yes. And we've done multiple performance improvement plans, but none of them stuck.
Lisa: Sounds like you've tried to give him helpful feedback, but at best there's been only temporary improvement. I can imagine writing up those PIPs started to feel like an exercise in frustration.
Matt: Yeah, I eventually gave up on them. I tried assigning Jerry to different supervisors, but that hasn't fixed the problems either.
Lisa: Hmm, so moving him around hasn't helped.
Matt: The CEO wants us to cut costs. That includes getting rid of deadwood ... like Jerry.
Lisa: It's true, the company is facing a rough market these days.
Matt: Not only that, but I also lost two good techs because they got sick of working with Jerry. He's wasting money and costing us talent. He needs to go!
Lisa: That is a big problem. I hate to hear we're losing good people. No wonder you want to fire Jerry.
Matt, it sounds like you've been trying to make the best of it with Jerry for a long time. You've tried giving him positive feedback, you've tried moving him to other teams, and he's still unreliable, plus his attitude is alienating other team members.
Matt: That's right! So when can we tell him he's being terminated?
Lisa: Well, the problem is that if we terminate him now, without getting more of our ducks in a row, it could expose the company to costly litigation. And the fact that he's been with the company for 20 years puts us at risk for an age discrimination claim.
Even though you've made a lot of attempts to give him a chance to improve, the law looks for some very particular elements in situations like this. We have to be able to document that Jerry has received specific warnings about how he has to improve, by when and what the consequences will be if he fails. And he needs to have been offered a chance to counter any claim that he hasn't measured up to the job requirements.
Matt: Well, I did put a note in his file that he needs to improve his attitude. But I guess that's not very measurable. And I didn't say anything to him about consequences because I didn't want to be too confrontational.
Lisa: Yeah, it can be challenging to figure out how to write a PIP that is specific and measurable. Would you be interested in reviewing the procedures we have for writing PIPs with me, so you can create a record that will support terminating Jerry's employment, assuming termination is still called for?
Matt: Yes, absolutely. Show me what I need to do.
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. . . . . . .
What strategies did Lisa use here? How did Matt end up interested in working with Lisa, rather than feeling like Lisa is an adversary?
1. Acknowledge feelings and perspectives without judgment.
When Matt complained to Lisa about Jerry and reported what he'd done to address the problems, she acknowledged the difficulty of the situation and the efforts he made. She didn't criticize Matt or argue with him (" ... but you didn't create the proper documentation, so you really can't fire him"). Rather than focusing on all the reasons Matt can't get what he wants, she focused on understanding his experience as well as acknowledging his frustration and the many efforts he'd made to improve the situation.
Tip: When having these conversations, it can be helpful to temporarily ban the word "but" from your vocabulary.
2. Give information, describe the problem, and look for solutions.
Only when Matt felt heard and understood could he hear the legal problems that his approach would create. Now he feels like Lisa is on his team, and he's open to considering what they can do together to solve the Jerry problem.
It may seem like the most direct and efficient response that Lisa can give to Matt is to cut right to the chase and let him know that it is premature to discuss firing Jerry. But by taking the extra time to acknowledge feelings and demonstrate understanding of the manager's perspective, this director will end up saving her company time and money, and she will inspire feelings of cooperation rather than anger and frustration in her management team.
Jathan Janove, J.D., is the author of Hard-Won Wisdom: True Stories from the Management Trenches (HarperCollins/Amacom, 2017). He is president of the Oregon Organization Development Network and was named in Inc. magazine as one of the Top 100 Leadership Speakers for 2018. If you have questions or suggestions for topics for future columns, write to JathanJanove@comcast.net.