Every executive has been there. Leadership is responsible for dealing with any difficult employee situation. Perhaps there has been workplace violence or a complaint about overtly sexual harassment by a supervisor. It may be that an employee’s work performance has deteriorated substantially in recent times and a serious warning about the possibility of job loss has become necessary. Maybe a minor disagreement among employees has escalated into considerable workplace disruption. Or perhaps an employee recently said something inappropriate, insensitive or downright offensive (and possibly unlawful) to coworkers, and now tempers are flaring. The list of possibilities is endless.
Dealing with problematic employee situations often requires an organization to focus on two major objectives. First, the immediate problem of resolving the matter on the ground. This might include various disciplinary scenarios, employee meetings or other strategies. But in addition, there is the specter that a lawsuit may follow—a scenario that can become a legal cost nightmare.
Those who have routine involvement with the internal resolution of employment disputes and conflicts, as well as the defense of lawsuits arising out of them, are often familiar with a variety of approaches to problem-solving in the workplace that include litigation-risk-reduction factors. Here are some perspectives and tools to help.
When A Problem Arises, Investigate Promptly And Thoroughly, Then Bring The Matter To Conclusion
For a variety of reasons, employers sometimes do not act as quickly or effectively as they should when confronted with workplace problems. But with the exception of very low-grade issues, some degree of investigation and deliberation is usually in order. Perhaps only a few minutes of dialog and/or record review is necessary, but there are many instances where much more—possibly even days of interviews and document analysis with assistance from human resources and even outside legal counsel—might become necessary. And even with the best of intentions, the process of investigation, decision-making and resolution implementation may nonetheless be delayed. Regardless of reason, though, more often than not, delay in resolving a workplace dilemma increases the likelihood that the matter may escalate. For example, if an offending employee is not promptly disciplined for misconduct, others may perceive this as tacit approval of bad behavior. On the other hand, prompt and clear action by the employer ordinarily deters unwanted future misbehavior.
When an organization’s investigation and decision process is finished, leaders should furnish those who need to know with sufficient information about the findings and what is to happen going forward. To that point, imagine a situation where in the aftermath of a sexual harassment complaint, the harassment victim is not informed about the employer’s investigatory findings, the nature of disciplinary action taken against the harasser and how the employer is otherwise planning to provide relief and remedy to the harassment victim. Strange as it may seem, communication lapses like this do take place. And when that happens, a victim might feel the matter requires further attention by a judge and jury.
Consistently Apply Your Policies And Performance Expectations
There can be serious legal problems that flow from inconsistent application and enforcement of otherwise lawful employer policies. For example, if you allow some employees to violate a policy but apply it strictly to others, they may sue you for discrimination or retaliation. This could happen when the complaining employees, who were treated more “harshly,” are in a protected category on account of race, color, religion, gender, age, disability or any other characteristic. In that case, your organization may find itself having to consider a costly settlement or unpleasant time in a courtroom with a jury. And that jury may be sympathetic to the argument that your complaining employees were treated differently on account of their protected characteristic or actions.
Never Leave Anything To Imagination
Most of us intuitively understand that we recall facts and events in the way that best benefits us individually. Our brains are hardwired to do this as a self-defense mechanism. And when it comes to dealing with employee misconduct or failure to meet the performance expectations, this mechanism is on full power. Take, for example, the case of the supervisor who must counsel an employee about unexcused absenteeism and tardiness. If the supervisor “generically” identifies the problem to the offending employee, but does not concretely describe it and give with specific notice about what will happen if the employer’s performance expectations are not met, the employee can plausibly argue after the fact that any improvement in attendance should have been satisfactory, even if that was not what the employer actually expected.
In this scenario, consider how different it is for the supervisor to tell the employee that, “We can’t have you missing so much work. If this continues, we’ll have to fix this problem” versus, “You missed three scheduled work days last month on an unexcused basis. This is not acceptable. If you miss additional work time without prior authorization, we will meet again to talk about disciplinary action that may include terminating your employment.” In the latter supervisory statement, there was little that could be left to the employee’s imagination.
Memory is a fragile and fleeting thing. As each day goes by, we forget a little more of what we remembered the day before. In the world of employment disputes, it is safe to say that employees frequently recall what they have been told very differently than do the executives and managers who made those statements. It’s that self-interest mechanism at work again. So how do we deal with differing memories of what was said and done in the past? By documenting everything—names, dates, places, events, witness identities, observer statements and the like. If the employer does not systematically create and maintain an accurate and sufficiently documented account of “who, what, when, where, why and how” details associated with the evolution of a workplace problem, then all that remains may be a continuing dispute that ends up in court. And bear in mind that when juries are called upon to decide what happened in an employment dispute, verdict statistics confirm that juries frequently agree with complaining employees. However, the likelihood that a jury will do so is substantially reduced when the employer’s actions have been thoroughly documented in a record that establishes the employer acted in a commonsense manner.
Successfully dealing with workplace problems and difficult employee communication is not a one-size-fits-all exercise. However, the techniques described above, along with other tools your organization has developed, will go a long way toward efficient resolution of workplace problems that also reduce your organization’s exposure to lawsuit risks.
Michael Abcarian is the Dallas Managing Partner of Fisher Phillips. For over 30 years Michael has represented Fortune 500 corporations, units of local government, and local business interests in labor and employment matters.
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