How to Address the Challenge of a Problem Employee

All experienced HR managers have faced the challenge of problem employees. The issue typically is related to either performance or conduct, continually recurs despite previous discussions and commitments being made, and leaves all involved feeling frustrated. 

“I’m at my wit’s end,” the manager thinks. “I don’t get what he doesn’t understand about how important this is, and I’m tired of repeating the same conversation and getting the same lip service without any hardcore results.”

The solution? Approach this challenge with a renewed emphasis and a sense of urgency, both verbally and in writing.

The Tough Conversation

“Like all true challenges throughout your career, the solution begins with clear communication of expectations,” said Kathie Nirschl, vice president of human resources at the Aquarium of the Pacific in Long Beach, Calif. “Constructive confrontation may not be fun, but it’s critical to change the tenor and tone of your verbal interchange to share a higher-level understanding of your and your department’s needs. In addition, you’ll want to move the record in a new direction in terms of the potential consequences of continuing the roller coaster effect that the current situation poses.”

Start by acknowledging your history of addressing the issue in the past and invoking a renewed sense of commitment in your conversation, like this: 

“Noah, I wanted to meet with you again to discuss your monthly recruitment deliverables. I know we’ve discussed this before on several occasions, but I’m concerned that you may not understand the importance of your data or the timelines of the monthly deadline relative to our department’s reporting obligations. Can we begin with your reminding me when your recruitment deliverables are due? (Response: “By the 10th of the month.”) That’s correct. What is the data used for? (Response: “Our department’s statistics and metrics for your monthly departmental performance report.”) Right. Who receives the report? (Response: “Our COO.”) Correct. What is she looking for? (Response: “Our team’s timely response to filling positions, turnaround time, cost-per-hire and source cost analysis and where we’re finding our hires, both internally and externally.”)”

“You’re correct on all fronts. What else is your recruitment report a part of? (Response: “Our department’s overall report that measures filling critical openings, our internal transfer and promotion rates, onboarding efficiency, the effectiveness of our IE&D recruitment outreach efforts and similar criteria that we’re measured by.”) Yes, you totally get it, which is great. However, I’m a bit frustrated. If you understand the importance of this deliverable and how it ties into our departmental report for the COO’s review, how is it that I’m always chasing your report down as we near the 10th of the month, while I find you scrambling for last-minute data?  (Response: “You’re right. I’m sorry about that and I won’t let it happen again.”)” 

“I appreciate you saying that, but this is the third time we’ve had this conversation and you’ve made that same commitment to me. How can I ensure that this will be the last time we have to have this discussion and that you’ll commit to me right now two things: First, that the data for your report will be collected throughout the month and delivered before the deadline with laser accuracy. Second, that if you won’t be able to deliver the report by the deadline for any reason, I’ll know about it before the previous month-end? (Response: “I’ll promise to do better.”)” 

“With this recap and renewed verbal commitment in hand, you’ll likely feel more safe and secure that Noah got the message this time,” Nirschl said. As a next step, getting that commitment in writing “would make the most sense since you’ve gotten hollow commitments for improvement from Noah before.”

The Same-Day Clarification Summary

“Following up with a confirmation in writing not only cements the importance of your message, but also creates a formal record of what was communicated and can be used to show that the individual was treated fairly through what’s known as workplace due process,” said Devora L. Lindeman, an employment attorney and partner at Greenwald Doherty in Kentucky.

It’s important that you create a documented record of the ongoing challenges you’ve experienced—along with your go-forward expectations—so that Noah understands what the problem is, what he needs to do to fix it and what he is expected to do in the future to meet organizational expectations.

“Note that at this stage, you won’t necessarily have to add the consequence language: ‘Failure to demonstrate immediate and sustained improvement may result in further disciplinary action, up to and including termination of employment,’ ” said Lindeman. “However, you can reserve that for a more formal progressive disciplinary action down the line should the problem continue to recur.” 

The same-day clarification summary can be sent to Noah via email after the meeting and be structured as follows:

“Noah, thank you for meeting with me this morning to discuss the importance of and your obligation to provide your recruitment statistics for our department’s monthly report without exception by the 10th of the month. The purpose of this memo is to confirm your understanding and our agreement to the following: First, that data for your report will be captured throughout the month in real time and delivered before the deadline with the highest level of accuracy and without any last-minute scrambling for information. Second, that if you won’t be able to deliver the report by the deadline for any reason, you’ll inform me about that before the previous month-end so that I can inform our COO in advance. This is my go-forward expectation without exception. I’m putting this in writing both to ensure your understanding of our department’s expectations and to make a record that we’ve held this conversation regarding your deliverable obligations. Finally, I’m documenting formally that you’ve made a commitment to me that this is the last time we’ll have to hold a discussion like this. Please email me back to confirm that you agree with these go-forward expectations, and let me know if you have any questions, concerns or suggestions.” 

“Email makes for the ideal communication channel for same-day summaries, letters of clarification, memoranda of understanding and the like because it’s so easily accessible and serves as an electronic record with a date and time stamp that can be used to defend the company’s position in court should wrongful termination litigation ensue,” Lindeman said. “Inviting the employee to acknowledge receipt and ask additional questions or make suggestions at that point strengthens the ‘due process’ record and your organization’s affirmative efforts at helping the individual comprehend the nature of the problem and his or her obligations to improve performance to your stated expectations. Juries want to see that the company acted fairly and gave the employee clear expectations and opportunities to improve.” 

The Written Warning

Of course, not every employer intervention, no matter how clearly structured, will result in performance or conduct turnarounds. In such cases, escalation to progressive disciplinary measures may be required as a next step when facing ongoing performance challenges. When that becomes the case, however, the same-day summary can serve as an attachment to the formal disciplinary warning, documented as follows:

“Noah, over the past four months, we’ve held several discussions regarding the timeliness and accuracy of you delivering your recruitment statistics by the 10th of the month. In fact, last month, I asked for a final commitment from you that this would be the last time we’d have to discuss the matter. I placed my concerns and expectations in writing in the form of a same-day summary, which you acknowledged that you received and had no questions or suggestions about. However, this month you again failed to meet the deliverable commitment on time, and you did not notify me by the end of last month that you would have any difficulty or challenges meeting this month’s deadline. As such, I am attaching the same-day summary to this notice to confirm that you received and understood the directive and expectations that you received. Likewise, you confirmed for me today there was no justification for missing today’s deadline. Finally, this document is being issued at the ’written warning’ level, where the same-day summary serves as the first notice (i.e., ’verbal warning’) of the problem. Please understand that failure to demonstrate immediate and sustained improvement may result in further disciplinary action, up to and including termination of employment.”

While these types of disciplinary interventions are never fun, they can help employees turn performance and conduct challenges around fairly and without drama. Further, they give the organization defenses against wrongful termination challenges. “Did the company ever put anything in writing?” is still one of the first questions that a plaintiff’s attorney will ask a potential client when deciding whether to take on a new case. And even if that case is accepted and litigated, your documentation trail will be clear, specific and direct, which maximizes your chances of prevailing and mitigates potential damage awards in the litigation arena.

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 corporate leadership trainer, certified executive coach, international keynote speaker 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.