Work jerks not only can drive away your best employees but also can make life difficult when you show them the door.
Smart-mouthed workers may have the wits you need to give your organization a creative edge, yet have personalities that are utterly destructive to the work environment. How can employers handle this “special” kind of employee—the kind who meets or exceeds performance and attendance standards but whose personality is positively toxic? You know the profile—someone smart and able, but who regularly engages in whining, belly-aching, gossip-mongering, back-stabbing, or other aggressive or passive-aggressive pain-in-the-neck behavior.
What does an employer do when an employee behaves in ways that lower morale, productivity and loyalty, yet carefully avoids going too far, such as engaging in overt threats or acts of violence; sexual, racial or other unlawful harassment; or open and direct insubordination? Litigation risks often exist in confronting these troublemakers. Such risks typically arise when:
- The jerk is in a legally protected class (such as race, sex, national origin, age) and claims discrimination.
- The jerk attributes improper behavior to a medical condition and asserts disability legal protection.
- He or she is covered by a collective bargaining agreement (CBA).
- The jerk wraps himself in the mantle of whistle-blower and alleges unlawful retaliation.
First of all, breathe. Then, roll up your sleeves and prepare for something that may be brand new to a troublemaker used to steamrolling over others—a perfectly civil fight. How you react should send the message loud and clear to the work jerk that behaviors, not just work output, count.
Unhappy Birthday to You
Quick fixes are seldom easy, and mistakes can be costly. Jerry Huffman, a New Orleans-based employment lawyer and a fellow member of the Management & Labor Employment Roundtable (MLER), once defended an employer in an age discrimination lawsuit in the Pacific Northwest. For years, the plaintiff had performed well statistically while she maintained a pattern of resisting authority, using foul language—even in front of customers—and directing insults at co-workers, especially younger ones.
The plaintiff eventually got a new, younger supervisor, who decided she was not going to put up with this behavior and quickly whipped together a progressive disciplinary paper trail that led to the older worker’s termination within two months. The new supervisor jumped on incidents that, considering the employee’s behavior over the years, were fairly tame, such as use of the word “damn.” Ignoring Jack Benny’s observation that “timing is everything,” management picked the employee’s birthday as her discharge date—without ever consulting the HR department. After the case was over, one juror remarked that although he and other jurors disliked the plaintiff, the jury could not stomach what it regarded as the employer’s overly hasty, slipshod and insensitive manner of terminating the plaintiff. The jury awarded her more than $100,000.
Work Jerks and Labor Law
While the case illustrates the dangers of disciplining a workplace jerk who can attack management’s actions based on protected class differences, a different set of problems arises when disciplining employees covered by CBAs.
Ric Alli, my colleague at Bullard Smith Jernstedt Wilson in Portland, Ore., and a traditional labor attorney, has defended a number of jerk terminations in labor arbitrations. Most often, the disciplinary hook is a provision in the CBA that allows employers to terminate employees for insubordination. However, Alli cautions that employers should not think this gives them a lot of latitude. Management must make sure it has all of its ducks in a row before potentially subjecting a termination decision to an arbitrator’s scrutiny.
In one case that Alli handled, a hospital hired a licensed registered nurse (RN) for a position as unit secretary, which involved various coordinating activities but did not include actual nursing or direct patient care. The RN evidently felt her talents were underutilized and became a meddling, disruptive sore point that affected her department’s morale and effectiveness.
She expressed her displeasure and contempt for others in various ways, such as operating noisy equipment at times when it disrupted other nurses’ work. During group reports, she had a habit of dumping paper clips and pens onto a table and rearranging them. She frequently interrupted others to interpose viewpoints that strayed far afield from her own job responsibilities. Although she never openly refused to comply with a direct order, she used instructions or directives as starting points to complain and assert that she knew better.
After several months of this behavior and after informal counseling failed to help, management gave her a written notice specifically identifying the inappropriate behaviors in which she had engaged and directing her to cease and desist from them in the future. Two months later, after she reverted to problematic behavior, she received a formal written warning, placing her on 90 days’ probation.
A further incident less than two months later resulted in her termination. She filed a grievance, and the union took it to arbitration, where an arbitrator upheld the discharge, finding that:
- The problems were substantial and affected the functioning of her unit.
- She had been given ample notice and opportunity to change, but had not done so.
- There was no inconsistency in her treatment compared with treatment of other employees.
Although the hospital prevailed in this case, terminating obnoxious employees covered by CBAs is never easy.
Given the risks, Suanne Tiberio Trimmer of Dawda, Mann, Mulcahy & Sadler in Bloomfield Hills, Mich., and an MLER member, recommends trying to develop a good working relationship with union representatives in dealing with such employees. Chances are, the employees don’t reserve their obnoxious behavior for management alone but rankle union members as well. Trimmer recalls one instance in which the union and the company met together with a workplace jerk and reviewed, in blunt detail, the problems he was creating and the changes they expected—as well as the fact that he was on “last-chance” status. When the employee misbehaved again, the company fired him. Although the union filed a grievance (probably to protect itself), the matter never went to arbitration and was never pursued further.
\Another word of caution from the world of traditional labor law, one that applies to both unionized and nonunionized workplaces: Beware of Section 7 of the National Labor Relations Act (NLRA), which protects employees who engage in “concerted activities” for “mutual aid and protection.” Las Vegas-based management attorney Edwin Keller of Kamer Zucker Abbott, a Worklaw® Network affiliate, cautions clients with nonunionized workforces that before disciplining whiners, complainers or gossips, management should assess whether the subject matter of the complaining could be considered terms or conditions of employment, such as wages, hours or working conditions. If so, the discipline could be deemed unlawful interference with protected, concerted activity.
This caution about the NLRA points to a broader source of legal concern for employers beset by workplace jerks. As HR professionals know, many federal and state laws protect many forms of employee activity and expression against retaliatory action. With last year’s seminal U.S. Supreme Court decision in Burlington Northern & Santa Fe Railway Co. v. White (126 S. Ct. 2405 (2006)), retaliation claims will continue to increase and become more expensive for employers.
If the “jerkish” behavior can arguably be linked to complaints of sexual, racial or other unlawful harassment or discrimination, or to other subjects such as safety, workers’ compensation, wage and hour laws, or Sarbanes-Oxley Act compliance, the employer must move exceedingly cautiously. For example, even when an employee has engaged in protected activity, if his manner of doing so is far out of line, he may be legitimately disciplined, provided the employer can clearly show that it was the manner—not the message—that produced disciplinary action.
Work Jerks With Health Problems
Additional sources of legal concern for employers contemplating disciplining or discharging workplace jerks are the Americans with Disabilities Act (ADA), the Family and Medical Leave Act and their various state law counterparts. When employees attribute their boorish behavior to medical conditions or connect them to medically related leaves of absence, the employer may have to walk a tightrope between a duty to accommodate and a determination not to tolerate offensive workplace behavior.
In Reed v. Lepage Bakeries Inc. (C.A. No. 98-450-P-H (D. Me. 2000)), a magistrate denied an employer’s motion for summary judgment and ordered that trial be held on a reasonable accommodation claim. Manuella Reed had been repeatedly counseled and disciplined for her disruptive behavior, which included loud arguments and the use of profanity with co-workers, becoming upset, crying, and leaving work. After becoming angry with a company manager during a meeting, Reed ignored requests to calm down and eventually got up to walk out of the meeting while spouting obscenities. After being admonished, she went into a profane rage with the manager. Not surprisingly, the employer fired her.
Nevertheless, Reed challenged her termination on the basis that she suffered from bipolar disorder as well as post-traumatic stress related to sexual abuse when she was a child. She claimed that by not allowing her to walk away from a situation where her mental illness would cause her “to explode,” she was denied a reasonable accommodation for her disability. Noting evidence that there had been prior discussions about allowing Reed to walk away from such situations, and the fact that her employer had failed to show the existence of a clear policy or practice that it would have fired any employee who behaved as she did toward the manager, the court ruled that Reed was entitled to a trial on her disability claim.
The district court subsequently granted the employer’s motion, but the case still illustrates the potential ADA hurdles for employers.
Steps to Follow
Unacceptable behavior on the job shouldn’t be tolerated, despite the legal risks. (See “ Ignoring the Obnoxious Is Risky”.) Here are some useful rules of thumb for employers on how to deal with work jerks:
Don’t let things fester. As the situation with the employee who was terminated on her birthday shows, a long pattern of tolerating jerkish behavior will make it difficult for an employer to confront it safely. Not only will the employee’s behavior pattern become cemented, but an employer may have a lot of explaining to do as to why it is acting only now, especially if there are protected class differences, the employee has since engaged in protected activity or the employee has notified the employer of some sort of health problem.
To quote Shakespeare, “If it were done, when ’tis done, then ’twere well it were done quickly.”
Be direct and specific. A poet more recent than Shakespeare has advice for us as well. To quote Robert Frost, “The best way out is always through.”
Management should confront the jerk directly and point out the specific behaviors that are unacceptable and must change. Max Neves, vice president of human resources for 1-800CONTACTS Inc., says, “My experience is to deal with the issue directly with the employee. I describe their good performance and give positive feedback and then describe the problem behavior and how it impacts his or her team. I ask how satisfied the employee is with their job or the company. Usually, they acknowledge their dissatisfaction and most leave voluntarily. In the few instances when the employee says ‘all is well,’ their negative behavior/attitude is quickly and concisely described and a commitment to change made. We have terminated employees who don’t get it, using progressive discipline, but not dragging it out over years.”
Adds Dave Davis, director of HR and legal counsel for Associated Food Stores Inc.: “The worst thing is to shy away from or soft-pedal the confrontation. Management needs to confront these employees straight on and specifically articulate the objectionable behavior.”
Directness also means intolerance of triangulation. Corbett Gordon, an MLER member and senior counsel with Fisher & Phillips in Portland, Ore., recounts that when she ran her own law firm and triangles began to form (for example, “A” complaining about “B” to “C”), she would collapse the triangle by bringing everyone into her office, repeating in front of everyone what she had heard from various sources, and force a discussion until the truth was revealed. This approach got the message across to whiners and gossips that their options were to quit, be fired or knock it off!
Do a consistency analysis. In almost every case where a discharged jerk sues a former employer, some sort of inconsistency is alleged. The inconsistency may be in how the employee was treated and what company policies or procedures say—for example, disciplinary steps that weren’t followed to the letter. Most often, the alleged inconsistency has to do with treatment of other boorish employees who allegedly were not disciplined.
Thus, if you are contemplating disciplining or discharging a workplace jerk, first determine whether your contemplated course of action might contradict existing policy, procedure or practice, and whether situations exist in which similar problematic behavior has not been confronted in the same way.
Make sure there has been procedural “due process.” The amount of material interpreting the constitutional term “due process of law” could fill a library. For employment case law and work jerks, however, procedural due process means:
- Clearly identifying the gap separating the employee’s behavior from expected behavior, and what needs to happen to close the gap.
- Providing adequate time to give the employee a fair opportunity to close the gap.
- Making sure the employee clearly understands the consequences of failing to close the gap.
- Ensuring that each of these steps is properly (and contemporaneously) documented.
As my colleague Devra Hermosilla, an attorney at Bullard Smith Jernstedt Wilson in Portland, Ore., points out, a strong record of such due process can protect an employer even when jerkish behavior is not very blatant.
Hermosilla recalls representing a restaurant in which an employee was fired for continuing to butt into other employees’ business. The employee filed an administrative claim, challenging her termination as retaliation for her complaints about sexual harassment. Although butting into others’ business might not be the most compelling justification for discharge, through demonstration of a well-documented progressive disciplinary process, the restaurant was able to get the administrative claim dismissed, a lawsuit was avoided, and the employee was even denied unemployment benefits.
Make it clear that a positive attitude is essential. Spell out in writing the fact that simply showing up to work on time and meeting technical or objective job requirements is not enough—a positive, cooperative attitude is essential.
Seattle-based employment attorney Ken Diamond of Winterbauer & Diamond PLLC, a Worklaw® Network affiliate, recommends including this language in the performance expectations section of an employee handbook: “We consider a consistently positive, cooperative, self-motivated, courteous and professional attitude to be an essential function of every position. While different positions have different primary areas of responsibility, everyone needs to work as a team, and we expect all employees to roll up their sleeves and pitch in as necessary to get the job done.”
David Wimmer of Swerdlow, Florence, Sanchez, Swerdlow & Wimmer in Beverly Hills, Calif., another Worklaw® Network affiliate, routinely encourages employers to add language like the following to job descriptions: “Employee must be able to relate to other people beyond giving and receiving instructions: (a) can get along with co-workers or peers without exhibiting behavioral extremes; (b) perform work activities requiring negotiating, instructing, supervising, persuading or speaking with others; and (c) respond appropriately to criticism from a supervisor.”
Including language such as this can prove useful in fending off the types of legal claims this article describes. Perhaps even more important, by letting employees know from the outset that “doing your job” means more than just making sales, operating equipment, writing reports, etc., you may be able to create a jerk-free zone in your own workplace.
This doesn’t mean there won’t or shouldn’t be disagreements. But in an atmosphere of mutual respect, more thoughtful consideration of different strategies may steer the organization toward greater profitability while keeping out both the jerks and the plaintiffs’ lawyers.
Now wouldn’t that be nice?!
Editor’s Note: This article is not intended as legal advice. For specific situations, consult qualified employment law counsel.
Jathan Janove is a partner with the law firm of Bullard Smith Jernstedt Wilson, a Worklaw® Network affiliate, with offices in Portland, Ore., and Salt Lake City, and a frequent contributor to HR Magazine. Janove, a member of MLER, defends employers and is the author of Managing to Stay Out of Court: How to Avoid the 8 Deadly Sins of Mismanagement (Society for Human Resource Management & Berrett-Koehler, 2005).