One of the great aspects of our employment practice is that we represent both employees and employers, so regardless of who we are representing we have the ability to look at cases from both perspectives. A few issues seem to come up repeatedly, and are worth remembering as we enter 2023.
1. Avoid surprises. It is critical to provide feedback to employees on a regular basis, through check-ins and real time affirmation when things are done well and correction when they’re not. There is no reason an employee should be blind-sided with a negative performance review they weren’t expecting, because they thought things were going well. It is also counterproductive for the business, because if someone isn’t doing their job properly, it wastes time and money to wait until review time to try and right the ship. Good coaching is so much more powerful in the moment.
2. Document, document, document. There are few things more challenging than when a client gets hit with a wrongful termination suit, and wants to defend that the decision was performance-based, but there is no documentation of the performance issues. Again, it is a matter of fundamental fairness to clearly communicate to an employee when they are not meeting the mark, but it is also essential to a proper defense in court. Document the issue, do so timely, and communicate the expected deliverable from the employee. Sometimes that is a hard message to deliver, but it is in everyone’s best interest.
3. Void for vagueness. When managing performance, avoid subjective language, like “not a team player” or “poor attitude” which can mean anything. Focus on objective metrics, such as tardiness or missed work on specific dates, missing sales quotas, or failure to deliver work on time. And make sure you have the data to back it up.
4. No disparate treatment. Make sure that there is no unconscious bias in how you manage your employees. In disciplinary matters, be consistent in when you initiate discipline for certain infractions and apply disciplinary measures consistently. In promotion and compensation matters, audit your workforce to make sure that you are not unconsciously favoring one group over the other, especially groups that have been traditionally underrepresented in management.
5. Patience is a Virtue. Often when an employee is not performing, or needs an accommodation of some kind, employers can lose patience and want them out of there right away. That is very often a mistake, and can create liability where none might otherwise exist. It is critical for managers to exercise self-discipline in those situations, and take the necessary steps outlined above, to ensure that if the termination decision is challenged it will be defensible, and they won’t seize defeat from the jaws of victory.
6. Empathy. Apply the golden rule to all, and treat them the way you would want to be treated. Even if you have to make a hard decision about an employee’s status, treat them with dignity and respect, and don’t turn it into “us against them”, which will only make everyone more defensive and make management of the situation more difficult. Whether employees or management, we are all human beings with feelings, and using a little empathy in those difficult situations will often defuse the situation and even make a termination a little less painful and humiliating for the employee.
None of these are particularly novel ideas, but they are good reminders as we begin the new year. It will also ensure that every company’s greatest asset — its people — are happy and productive.
