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Whether your firm has
three employees or several hundred, there are going to be employee
work performance issues. While no one enjoys confronting an employee
about deficiencies, it is a necessary part of being in business.
Employee discipline can be a positive practice that fosters improvement
or a rancorous, time-consuming, energy-draining ordeal that damages
both the company's reputation and employee morale and results in
expensive litigation.
In the not-too-distant
past, contractors worked outside of the mainstream. If they wanted
to fire somebody, they did so. Things have changed drastically.
Nowadays every move has to be justified. Termination is no longer
the easy road. It can cost you a lot more in paying unemployment
benefits, recruiting, and training a new employee. In many fields
in the construction industry, the talent pool is so shallow that
getting rid of a qualified employee can be detrimental. Thus, more
and more firms are finding ways to weather the storm and keep that
employee onboard.
"It's rare
to find a supervisor who relishes confrontation," notes Doug
Mure, owner of DVW Resources, a consulting firm in Wrentham, MA,
that specializes in providing human resources (HR) services to contractors.
"They'd rather turn their back on the problem and hope
it goes away. But progressive employers are spending more time training
their supervisors as to the importance of leadership, fair and honest
feedback, and documentation. Not just to avoid litigation, but to
provide a proper environment for the employee."
Nowadays it's not enough
for a supervisor to be a skilled technician on the excavator or
a top-flight administrator. Supervisors have to be people persons.
They need to be able to motivate people. Sensitivity, fairness,
and communication skills should be among their attributes. Unfortunate
as it might seem, one poorly handled employee issue can ruin a career
or even sink a company.
An ever-increasing number
of companies require their supervisors to provide constant feedback
to all employees and not just during yearly reviews, reports Sim
Bernstein of Sim Bernstein Associates, an HR consulting firm in
Stamford, CT. An ongoing process allows the supervisor to establish
a rapport with the employee that paves the way for both negative
and positive feedback. If it is an ongoing process, the employee
won't see it as being called on the proverbial carpet. He won't
feel as if the roof is caving in.
Most employees will respond
to the challenge and see a career benefit in the personal attention
from their boss. It also provides for ample opportunity to document
any shortcomings in case the employer needs to justify a layoff
or termination.
According to Keith Byrom,
manager of employee development for Zachary Construction Corporation
headquartered in San Antonio, TX, a supervisor needs to exercise
creativity and common sense. "Some supervisors get into trouble
trying to fit everything into a one-size-fits-all approach, meaning
that they sometimes feel that every time a certain thing occurs
they have to respond the same way, regardless of whether the circumstances
are different. It's important to recognize that individual
circumstances surround [each] particular situation and to understand
that the approach requires good judgment and a total understanding
of the situation. We don't believe necessarily that every situation
should be handled exactly the same."
Simply put, supervisors
are now being asked to find ways to walk the employee through the
rough spots and provide motivation, while at the same time being
firm. Some companies have gone to great lengths in trying to develop
managers with leadership skills. Some send their personnel for weeklong
retreats that utilize such challenges as sailing, rafting, backpacking,
stand-up comedy, and ropes courses (where they hang as high as 80
ft. over the ground). The entire experience is devised to develop
teamwork, bonding, and problem-solving skills.
"When people meet
a challenge, it dramatically increases the sense of empathy and
encouragement that [they] have for each other," observes David
Vinson, instructor/consultant for Adventure Based Training.
According to Kenneth
D. Fisher, director of human resources for Geneva Rock Products
Inc. of Orem, UT, the best way to help a troubled employee and protect
the firm from litigation is to be honest and treat them with respect.
"It's not confrontational. We're not saying you're
a bad person. We don't show anger. It's just the facts.
We expect you to be to work on time, and if you can't, we try
to get your attention with a suspension and then finally termination
if you don't follow the rules. It's just very businesslike.
You have to be able to meet our expectations to work here. If you
don't, you'll have to find a job someplace else."
Fisher says their motto
is to be fair. Get both sides of the story before making any disciplinary
decision. In confronting an employee, the supervisor needs to describe
the problem, get the employee's side of the story, tell him
what is expected of him, and ask how he intends to alleviate the
situation. "You always get a commitment from the employee on
how they're going to fix the problem," Fisher stresses.
"The golden rule
is to treat people with respect," emphasizes Bernstein. "Treat
people like human beings, with courtesy, with tact. You can criticize
somebody. There are two sides to that coin. Don't be afraid
to compliment good work and don't be afraid to point out shortcomings.
The whole idea of two-way communication in any work environment
can reduce your problems, but how many of us do it? Try to make
your criticisms constructive, try to do your evaluations [with the
recognition of] how important they are. Most managers feel that
evaluations are a pain in the butt instead of recognizing it as
an ongoing process."
He also encourages managers
to take some time in preparing for employee evaluations and face-to-face
meetings. It is certainly not something that can be done effectively
five minutes before the meeting.
Some tips that help in
the process of employee confrontation:
- If the employee becomes
agitated, let him vent for a few moments. Don't take it personally.
Keep calm.
- Provide specific examples
so the employee has a clear idea of what needs to be improved.
- Don't delay discipline.
The longer you wait, the easier it will be to continue to put
it off and then decide to forget it altogether. When an employee
is told nothing, he assumes everything is all right.
- Don't act as
if you've never made a mistake. Be human in your approach
to this delicate situation and the employee will be that much
more willing to listen to you.
- Try to get the employee
to open up to you. One way can be to ask open-ended questions
that require more than a one-sentence reply. Allow the employee
to give his opinion on operations. Ask him what you (the boss)
can do to make things run smoother.
- Let the employee know
that you are listening by making affirming statements that confirm
that you truly hear and empathize with his problem.
- Try to conclude meetings
on a positive note.
Byrom says Zachary has
a five-step conflict resolution process to help ease the tensions
between employees and their supervisors. It includes solving a problem
with local management, discussion with a resolution coordinator,
taking up the matter with a panel of peers in a third-party review,
outside mediation, and outside arbitration. The firm also has a
counseling program in which employees can receive confidential assistance.
"We view these two
programs as a benefit to employees because it provides them ways
that they can resolve issues without having to go through extensive
litigation," explains Byrom. "We provide this alternative,
which provides a quick and easy resolution, and we think as a byproduct
of that, lawsuits are not necessary."
Bernstein supports these
programs whole-heartedly. "In most cases it helps you avoid
the war. I see them as major pluses if management takes them seriously,
if the union takes them seriously, if the employees take them seriously."
He believes that just
offering them can be a tremendous benefit in the courtroom. "You're
looking at an employer who has tried to do the right thing, who
has practiced good HR practices, good management practices. These
things can only benefit the employer. Certainly when the chips are
down–whether it's a court of law or arbitration or whatever–these
are all brownie points on your side.
"It's hard
to measure how truly valuable these programs are because you don't
know how many problems have been avoided. I'm a firm believer
that a good program of counseling, of conflict resolution, avoids
so many problems that would cost you untold time, money, and energy."
Bernstein recommends
that companies keep an eye on their counseling programs to make
sure they are effective. "It's not enough to say, ‘I
have a program' without checking to see if it's working."
One of the reasons that
counseling is valuable is that it offers employees help confidentially,
he points out. "An employee can pick up the phone or a supervisor
can make a referral to employee assistance saying, ‘This employee
is not performing. I'm not a psychologist but if you can help,'
they can direct the employee to seek assistance or have the counselor
call them. It could be [that the] employee's kid is on drugs
or [his] wife is carousing. The problem itself may not be work-related,
but the key is getting some help for the employee. If he is having
financial problems, the counselor can get him help with budgeting,
managing his funds."
If termination is inevitable,
you must provide due process in order to protect the company from
possible litigation, stresses Bernstein. "For instance, if
you have a drastic case where you think an employee is stealing
and you find his hand in the cookie jar, 50 years ago you would
have thrown him out on his ear. Today you suspend him, you notify
him of the charges, you give him a right to be heard–with or
without representation–and you consider all the facts before
you act, and you document, document, document."
According to Bernstein,
the best way to invite a lawsuit is to catch an employee off-guard.
"The worst thing that can happen is for you [the supervisor]
to say, ‘Your work has been terrible for years and I'm
going to have to let you go,' and the employee says, ‘I've
thought I've been an outstanding employee for years. You've
never said anything to me.' That can create the kind of rancor
that can end up in a lawsuit," cautions Bernstein.
"I've seen
it happen a lot more than you'd imagine. You go into an employee's
folder and you do not find a darn thing documenting any misbehavior.
The failure to document is probably the single greatest shortcoming
of all supervisors and managers. It's the ‘nice guy'
syndrome–nobody likes to write somebody up."
"You have nothing
without documentation," agrees Fisher. "Documentation
allows you to establish not only a paperwork trail to protect the
company, but it also provides complete information that the employee
needs. They know exactly what they did wrong, what they need to
do [in order] to do better, so there should not be any surprises
when you actually need to suspend or terminate because they knew
what they had to do and they know whether they met those expectations."
Most HR experts suggest
that to remain on safe legal footing, all employees need to be informed
in writing of all job performance expectations and site regulations.
In the video "When You Have to Release an Employee," produced
by the Associated General Contractors of America, attorney Charles
E. Murphy with Murphy, Smith & Polk in Chicago, IL, states,
"If you haven't told an employee the rules they should
abide by, generally a jury is going to look at that and see it as
unfair. If there has been proper communication so the employee knows
what is expected and then for some reason the employee doesn't
perform, that employee who is later fired is much, much less likely
to file an action."
Mure, who has been in
the HR business for 22 years, has a dissenting opinion as to disciplinary
policies. His theory: What you don't have in writing won't
hang you. "The best suggestion I've always told people
is if you are going to have any type of a written progressive disciplinary
policy, you'd better make sure you consistently follow it.
There are two schools of thought: Either you don't put anything
in writing or you have specific procedures. If you have managers
that aren't going to be as diligent as others in following
procedures, those are the ones that are going to get you in court.
Not complying is just something else for an attorney to shoot at."
Another way to prevent
lawsuits is to negotiate a resignation from the troubled employee,
suggests Bernstein. "If you get a resignation, unless the employee
comes back and says that resignation was under duress, that resignation
is final. You can avoid a lot of protracted litigation and aggravation.
People get hard headed and basically say, ‘I'm going to
show that SOB. I'm not going to let him resign.' An amicable
separation, even under poor circumstances, is always desirable.
You don't have to guarantee that you're going to give
glowing references. I was one of these characters that would say,
‘Oh no, if there is a disciplinary action, we're going
to take that disciplinary action.' In retrospect, I went through
a lot of grief and aggravation that could have been avoided."
By far the number-one
cause of work-related lawsuits involves wrongful termination, whereby
the employee claims he was not treated fairly. Employers need to
be extremely careful in how they proceed. An employee's state
of mind at time of termination can determine whether they will be
so provoked as to file suit. Once again supervisors need to use
their own judgment and instincts on how to proceed in a dignified
manner. Some firms have the dearly departed's desk cleaned
out by another employee; they are not allowed any time to say goodbye
to fellow workers and are promptly escorted out of the building.
Then the company might add insult to injury by having new keys made
for the entire building.
It is important to keep
office scuttlebutt to a minimum. When employees ask about an incident,
supervisors should reply that they cannot comment because company
policy says they are not to discuss employment matters.
Use your own judgment
as to whether you need a witness present during face-to-face meetings.
"You only need a
witness if you really feel it's going to be a confrontational
matter or you feel it's something that's going to most
likely lead to eventual termination," says Byrom. "I mean,
to have a witness in the room every time you do a performance discussion
with an employee makes it look like you're trying to set him
up for something. It creates too much of a defensive environment
for the employee. Certainly if you feel that you've got someone
that's going to be very defensive and confrontational, I would
recommend that you get a third party who can say, ‘Yes, we
discussed this, this, and this, and they understood that their performance
needed to be improved or possible termination would be the outcome.'"
If there is the slightest
hint of a possible lawsuit, you should promptly get legal advice,
emphasizes Bernstein. "You should be guided every step of the
way. The red light goes on when you get into discipline. There are
so many laws involved. You have the EEOC [Equal Employment Opportunity
Commission], you have OSHA [Occupational Safety and Health Administration]
rules and regulations, and you have the ADA [Americans with Disabilities
Act] that have changed the playing field drastically."
No matter how much grief
a termination can bring, a firm should never keep an employee merely
because it feels it might be sued.
"If you're
going through this process in fear of getting sued, you're
ineffective, in my opinion," Byrom candidly remarks. "You
have to simply follow the employment law, you follow good employment
practices, and you treat the employee with respect and dignity all
the way through the process, and I think things work out in the
proper way."
"If they've
done everything fairly and followed their policies and procedures,
they shouldn't be afraid to terminate people," states
Mure. "It's a fact of being in business. If you've
got policies and they're being followed, you can't be
in constant fear of ‘I can't terminate someone' because
of [concern] of litigation. You can't be so fearful of the
legal system that you're going to let poor performers continue
to operate in a nonproductive manner. I mean, you've got a
business to run."
Mike Kennedy, general
counsel for the Associated General Contractors of America, notes
that some fired employees try to sue on questionable grounds in
the hope that they can intimidate their employers into offering
a settlement in order to save legal fees.
He agrees that firms
cannot operate out of fear of being sued: "Business moves too
fast for people to be fearful. You do need to have a standard set
of operating procedures and a standard set of employment requirements,
and you need to follow them consistently. I'd say the single
biggest objective is to be consistent in the way you treat employees."
When it comes to employee
discipline, working to keep the troubled employee out of the unemployment
line is the most efficient means for firms to stay out of the courtroom.
Writer Jack Beardwood
has more than 20 years of professional experience working with newspapers
and magazines.
GEC
- November/December 2002
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