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October 10, 2019
You know you have a problem staffer at your business, but you are too busy to address the issues at hand. So you avoid the problem and eventually sit down with the employee to say, “It’s just not working out, so we’re letting you go.”
If this sounds familiar, you could be setting yourself up for expensive and protracted litigation, says Scott Warrick, an employment attorney and HR consultant who is the author of the book Solve Employee Problems Before They Start. “Part of good employee relations is firing people,” he says. “However, you have to work up to it – a firing shouldn’t come unexpectedly. And if you get sued, you’ve already lost – the only people who win are the attorneys.”
Labor is often the biggest part of a business’ budget, and it’s worth the investment you make in it, but you must treat it as valuable as any relationship you have. Consider these three steps to ensure that you remain compliant and fair when it’s time to let employees go.
The worst thing you can do when dealing with a difficult staff member is to ignore any problem they’re creating in the office. “We treat the copy machine better than we treat employees,” Warrick says. “What if I kick a $10,000 copier because it jams? Any employer in the world is going to fire me. But we have managers who fail to deal with employees who are causing problems at work, and those employees are making $100,000 a year. If that doesn’t change, you will not stay in business.”
You can’t avoid staff issues, and you can’t use bullying tactics to deal with them – instead, you should schedule time with the problematic employee to talk about the issues as soon as you hear about them.
Suppose you have a problem staff member in January – they’re a bully and terrible at what they do. The manager is likely to talk about the issue with a peer but could fail to talk to the employee. “We want to be nice, so we don’t say anything in January – not even until May, when the staff member has bullied someone who is threatening to sue,” Warrick suggests.
If you passively ignore the employee’s bad behavior, you are setting your company up for massive issues. “In many states, if you see something happening in your workforce and you don’t do anything about it, you just said it was okay,” Warrick notes. “If you say ‘Oh it’s okay, we’ll work through it,’ you’re setting yourself up for a potential promissory estoppel claim. Your failure to act can also be used as evidence that you approved of what the employee was doing in many other legal actions against you. You are increasingyour legal liability. So communication is the main differentiator.”
For the problem employee who begins creating issues in January, you can’t let the issue go until May – you shouldn’t even let it continue into February. Instead, you should address and resolve the conflict right away. Warrick recommends an “EPR strategy,” which stands for Empathic listening, Parroting and Rewards.
Empathic listening involves asking the employee to explain what’s going on from their perspective. You might say “We’re getting complaints from clients, help me understand the issue,” and then be quiet and listen.
For parroting, you repeat back what you heard while you listened empathically. You tell the person what you heard and ask if you understood them properly – and you don’t move on until you’re both sure you’ve understood the staff member.
Then you move on to reward, which in this case is a validation of their feelings. “Many people don’t want to validate an employee’s feelings because they think it means you’re agreeing with them,” Warrick says. “However, validation is simply telling the employee that they have a right to their opinion.” In this step, you can tell the employee, “I understand what you’re saying, but what about this?” or “I see where you’re coming from, but I disagree.” This is respectful as a response without telling the person they’re correct.
Suppose a week passes and the employee is abusive to another staff member. At this point, you must sit down with them again and say something like, “I thought after we talked, we had an agreement -- what happened?” Tell them you’re creating a plan to tackle the issue so it doesn’t happen again, and then follow through with that plan. After that, send another email documenting what you discussed.
If the same problem happens a week later, you must issue a written warning to the employee. Have that process in your employee handbook, and ensure everyone at the company knows the process. The handbook should say something about how “all employees must complete all company documentation such as tax forms, warning forms, performance appraisals … failure to do so may result in your immediate termination.”
Once you get to the point of the written warning, you’re essentially giving the employee every chance to survive, but they have to do what you want. “Employers still run the workplace,” Warrick says. “Don’t be overly nice, but don’t be nasty. You coach only twice, and then you go into the written warning, then maybe another. If you follow this system, if they don’t improve, they’ll be gone by Valentine’s Day.”
Say you get to mid-February and it’s time to let the problematic employee go. You’ve coached them and given two written warnings, and at this point, you have done all you can to get the employee to improve. “Many employees will exit on their own at this point because they see it coming,” Warrick says. “If that happens, get the resignation in writing, and if you think they’ll be difficult for the ensuing two weeks, tell them they’ll get paid for two weeks but they can leave immediately.”
Never use a vague phrase like “We’ve decided to go another way” or “It’s just not working out,” he says. That can come back to hurt you because you haven’t indicated any reason that the staff member is being let go, and if it takes them by surprise, the staff member is more likely to be disgruntled, which can lead to a lawsuit, or even to workplace aggression. Simply recount what you have done by saying something like, “Now, Sally, we’ve been going over this with you for a while now and you have simply not improved. So we have to let you go.”
Neha De is a writer and editor with more than 13 years of experience. She has worked on a variety of genres and platforms, including books, magazine articles, blog posts and website copy. She is passionate about producing clear and concise content that is engaging and informative. In her spare time, Neha enjoys dancing, running and spending time with her family.
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