Dealing with chronically difficult employees is a challenge for employers that can have significant and long-lasting effects. Unfortunately, problems posed by a difficult employee do not always end when the employment relationship terminates. Legal issues can prolong the situation and require an employer to expend considerable time and expense defending its employment actions to combat liability. However, human resources professionals, supervisors, and managers can take proactive steps to effectively respond to difficult situations.
Reviewing the employee evaluation process is an excellent first step in preventing the development of problem employees and creating a legally defensible employee management system. Evaluations should identify and help to correct poor performance or other employee issues. The use of general appraisal forms that are not specifically related to the position being evaluated are suspect and of limited use when defending employer actions.
In order to create a legally defensible evaluation system, employers should develop job-specific evaluation forms with detailed criteria. Evaluations should be based on observable job duties, not character traits or unsupported judgments. Subjective performance assessments may be riddled with personal opinion, unsupported criticism or inappropriate comments that can raise questions about discrimination or other forms of liability.
A two-tiered review process that involves both direct supervisors and upper management is recommended to ensure that evaluations are effective and appropriate. This allows for additional oversight and provides a mechanism for employers to identify any managerial problems at the supervisor level. Before conducting performance reviews, supervisors should receive written instructions and training to guide them through the evaluation process. In addition to relaying practical instructions, this training should also remind supervisors to avoid subjective comments, provide accurate feedback, and implement other best practices.
Although performance issues can be unpleasant to discuss, it is critical that supervisors acknowledge problems and communicate with the employee about the issue. Failure to alert an employee about his or her job performance issues could lead to avoidable turnover and support a former employee’s claim of discrimination. An evaluation system should allow for employee review, comment and appeal as part of the review process.
An evaluation process is not complete without a record-keeping system to document what occurred. Additionally, employers should be wary about allowing a robust evaluation system to take the place of timely reporting performance issues. Even with a periodic review process in place, it is important to keep track of performance problems as they occur. Documenting employee issues as they arise helps establish accurate and compelling records, as a supervisor can easily forget facts after waiting months to record issues or events. Regular written documentation is also useful to disprove allegations of bias. For example, if an employee has years of consistently good performance reviews because issues went undocumented and eventually begins to receive negative reports, it could appear that poor job performance is a pretext for age discrimination.
If an employee problem warrants a disciplinary warning, documentation is even more critical. Follow five steps when implementing a formal written reprimand and provide documentation to support each step: describe what the employee is doing wrong; provide recommendations or assistance on how to improve; provide a reasonable period of time for improvement; explain what will happen if improvement does not occur; and verify all information with the employee’s signature to establish that she or he understands the conversation.
All evaluations and disciplinary measures must take into account applicable laws. For example, attendance issues cannot be viewed in a vacuum without consideration of the legal protections provided by FMLA. If in doubt, consult your internal human resources department or appropriate legal counsel. Dealing with chronically difficult employees is no easy task, but tailored performance reviews and a thorough documentation system are key tools that will help you work through the challenge.
* This article first appeared in The Journal Record on May 7, 2021, and is reproduced with permission from the publisher.