Performance Improvement
As in any relationship, there are times when disagreements occur; in the
employment rela- tionship, these disagreements are usually related to
some form of performance issue and can result in a disciplinary action.
Much has been written about this topic, because it can become a source of
legal action if the employer doesn’t act appropriately. HR’s role in the
disciplinary process is to provide the expertise needed to set up a fair and
equitable process that is applied consistently throughout the organization.
Organizations with effective ER programs work to prevent the need for
disciplinary action. The establishment and publication of clear policies,
procedures, and work rules combined with clearly communicated
expectations for individual employees are the cor- nerstones of
prevention. With regular feedback, both positive and negative, employees
are better able to improve performance issues when they’re easily
remedied. If a performance problem can’t be resolved at this level, the
supervisor moves into a formal progressive disci- plinary process.
Discipline is a performance management tool that is designed to modify
employee behav- ior through the use of negative consequences. Many
companies have a formal code of con- duct that is used to communicate
examples of expected employee behavior, and when an employee fails to
behave in accordance with policy, discipline may be used. HR is
responsible for creating the discipline policy, communicating the code of
conduct, and ensuring that the administration of the policy doesn’t violate
the law. A good discipline policy doesn’t neces- sarily have to tie an
employer to specific steps in the discipline process, but rather makes a
statement about the employee’s responsibilities and the consequences for
failing to execute those responsibilities in accordance with company
guidelines. With wrongful-termination and wrongful-discipline lawsuits
on the rise, it’s imperative that HR is up to date on the stan- dards
pertaining to employee discipline. A seemingly neutral code of conduct
that negatively impacts a protected-class group may be found to be
discriminatory. Furthermore, disciplin- ing or terminating an employee
for exercising their leave rights, for reporting harassment, or to avoid
paying a sales commission are all examples of wrongful
discipline/discharge.
Disciplinary Terminations
In progressive disciplinary situations, if informal coaching and the initial
stages of the disciplinary process don’t remedy the performance
problem, it’s time to move to the termi- nation stage. When this becomes
necessary, the manager should work with HR to ensure that, to the extent
possible, all necessary steps have been taken to prevent legal action as a
result of the termination. As discussed earlier in this chapter, due process
isn’t required in employment actions taken by private employers, but
ensuring that employees are informed of the issues and given the
opportunity to tell their side of the story demonstrates that the employer
treats them in a fair and equitable manner.
In cases where employee actions create a dangerous situation for the
employer, as in theft of company property or violence in the workplace,
the employer should move imme- diately to the termination phase of the
disciplinary process. When this occurs, the best course of action is to
suspend the employee pending an investigation, conduct the investigation in a fair and expeditious manner, and, should the results of the
investigation support termination, terminate the employee.
Terminations are always difficult situations, and HR professionals need
to be able to provide support for managers who must take this action.
There are two areas in which HR’s expertise is critical: counseling
supervisors before the termination meeting and providing information
so that managers avoid wrongful-termina- tion claims.
The Termination Meeting
Termination meetings are among the most difficult duties any supervisor
has to perform. When termination becomes necessary, HR should meet
with the supervisor to ensure that there is sufficient documentation to
support the action and to coach the supervisor on how to appropriately
conduct the meeting. By this stage in the process, the employee should
not be surprised by the termination, because it should have been
referred to as a consequence if improvement didn’t occur. The meeting
should be long enough to clearly articulate the rea- sons for the
termination and provide any final papers or documentation. Managers
should be counseled to be professional, avoid debating the action with
the employee, and conclude the meeting as quickly as possible.
The timing of termination meetings is a subject of disagreement
as to the “best” day and time. Taking steps to ensure that the
termination occurs with as little embarrassment for the employee
as possible should be the guiding factor in making this decision.
Once the meeting is completed, and, of course, depending on corporate
policy and the circumstances surrounding the termination, the employee
may be escorted from the build- ing. Company policies differ on this part
of the process: some companies have a security officer escort the
employee from the building; others allow the employee to pack up personal items from the desk with a supervisor or security officer present.
While the supervisor is conducting the termination meeting, facilities
and IT personnel are often simultaneously taking steps to prevent the
employee from accessing the company network or facilities once the
termination has been completed.
In any situation with the possibility of the employee becoming
violent, HR should arrange for security personnel to be nearby or, in
extreme cases, ensure that the local police department is advised of the
situation.
Wrongful Termination
Wrongful terminations occur when an employer terminates someone
for a reason that is prohibited by statute or breaches a contract. For
example, an employee may not be terminated because they’re a
member of a protected class. If an employer gives a different reason for the termination but the employee can prove that the real
reason was based on a discriminatory act, the termination would be
wrongful. Similarly, an employee
may not be terminated as retaliation for whistle-blowing activity or for
filing a workers’ compensation claim.
Workplace Behavior Issues
Employees are human beings whose behavior at work is influenced by
many factors, including experiences and situations that exist outside the
context of the workplace. Regardless of the source, these factors
influence the way employees behave while they’re at work. Employee
behavior and management’s response (or, in some cases, lack of
response) affects the productivity and morale of the entire workgroup
and may spill into other parts of the organization. Some employee
behaviors that can lead to disciplinary action include the following:
Absenteeism Employees call in sick for many different reasons—
sometimes they them- selves are ill or perhaps a child or parent needs
care. Some employees have been known to call in sick to go surfing,
hang out with friends, go shopping, or have a “mental health” day.
Regardless of the reasons employees give for absences, more often than
not the unan- ticipated absence causes problems for the work group. At
the very least, another employee usually must take on additional tasks or
responsibilities for the duration of the absence. When one employee has
an excessive number of absences that aren’t protected under FMLA, an
absentee policy provides the basis for disciplinary action. An effective
policy includes a clear statement of how much sick leave is provided,
whether each day off work is counted as one absence, or whether several
days off in a row for the same illness is consid- ered one absence. The
policy should also tell employees whether the absences are counted on a
fiscal, calendar, or rolling-year basis, and when a doctor’s note is
required before sick leave may be used.
Dress Code Dress-code policies let employees know how formal or
informal their clothes need to be in the workplace. Some types of clothing
may not be appropriate for safety rea- sons (such as to prevent a piece of
clothing from getting caught in a machine) or to ensure a professional
appearance throughout the organization. A policy should describe what
type of clothing is appropriate for different jobs, give examples to clarify,
and let employees know the consequences for inappropriate attire. If
appropriate, the policy may also describe func- tions or situations in
which employees are expected to dress more formally than normal.
Insubordination Insubordinate behavior can be as blatant as employees
refusing to perform a legitimate task or responsibility when requested by
their managers. It can also be subtler, such as employees who roll their
eyes whenever a manager gives them direction. It’s not only disrespectful
to the manager or supervisor on the receiving end of the behavior, but it
can also create morale problems with other members of the work group.
Although few organiza- tions have specific policies for insubordination, a
code of conduct that describes the organi- zation’s expectations for
appropriate behavior, such as treating all employees with dignity and
respect, provides managers with the tools they need to correct
unacceptable behavior.
When discussing performance issues with employees, managers
should be encouraged to focus on describing the unacceptable behavior
as specifically as possible instead of using general terms such as bad
attitude, insubordinate, or poor performance. The more specific the
description, the easier it will be for the employee to understand and
improve. Specific
descriptions of performance issues make any adverse actions easier to
defend if an employee decides to take legal action.