Good Employees Gone Bad: Counsel Before You Cut

03/05/07

The Case
Judith, age fifty-eight, has been in charge of the production department for eighteen years, and she rules it with an iron fist. People often complain about her style, but because she usually exceeds challenging production quotas, senior management has always left her alone.

Until now. For the past year, production has slipped. When her boss would question her about it, she’d snarl out comments like, “I’m doing the best I can.”

Lynne, the company HR director, got involved. First she tried to coach her, which Judith resisted from the start. Then she gave her a verbal warning that she’d better shape up and reach her productivity goals.

Nothing changed. Production levels continued a slow decline, and she was often seen in her office reading magazines. Lynne confronted her and gave her a last-chance warning to turn things around. Judith sneered and said, “Last chance, eh? We’ll see who lasts longer here. Besides, you don’t want to throw an old lady out on the street, do you? The EECO might not like that.”

Lynne went straight to the CEO and told him what had happened. “That was rank insubordination,” she said. “Besides, she’s ignored the warning I gave her. She’ll have no case with the EECO. I say we terminate her—now.”

The CEO, looking troubled, said, “Let’s not be hasty. If we fire her, we’d probably replace her with Jim, who’s fifteen years younger. That might not look good. On the other hand, she has become a real pain, so maybe we’ll let her go,” he said. “Let me think about it.”

The Analysis
No one looks good in this scenario. The big problem is that this company waited too long to begin counseling Judith, and it failed to address her lackluster performance when problems arose. In doing so, it communicated to her that she could get away with poor performance. That’s a bad message to send any employee.

That is one reason terminating her at this point is a risky proposition. The company’s tolerance could establish to a jury that, from the company’s perspective, Judith’s poor performance wasn’t really that bad or she would have received effective discipline or counseling before a year had gone by. In addition, the company has not done a very good job of creating a paper trail that would substantiate a decision to terminate. For the past year, Judith’s performance has suffered and production has slipped, yet her boss has not documented anything.

Worse yet, all of a sudden, a long-standing employee with a record of outstanding performance is suddenly given a “last chance” warning with no tangible evidence that she was previously warned about shortcomings. This pattern of facts won’t endear the employer to a jury.

Finally, replacing Judith with a younger person, who is male, would add another set of facts to the case that reflect poorly on the employer. It gives her a basis for a sex discrimination claim as well as an age claim. (That Jim is over forty—and also covered by the Age Discrimination in Employment Act—doesn’t necessarily insulate the company from a charge of age discrimination.)

First: Find Out What’s Wrong
Before the company fires Judith—or decides to simply put up with her poor behavior and performance—it should try something it should have done a year ago: counsel her.

Dramatic changes in an employee’s behavior do not happen in a vacuum. Something has happened to Judith that has affected her performance. It may have been something personal or something in the workplace. For instance, maybe she was passed over for a promotion she thought she deserved.

I would have a trusted manager, someone with whom Judith has some rapport, have a heart-to-heart talk with her to try to get to the root of the problem. Even if the problem is outside of work, something might be done in the workplace to improve her attitude. If the problem is something that happened in the workplace, perhaps addressing it and letting Judith “vent” will have a beneficial effect.

If not, or if she refuses to disclose the existence of a legitimate problem, the company has to go on to Plans B or C.

Discharge or Document
If personal counseling has no effect, the employer has two courses of action—it can discharge her on the spot, as the HR person recommends, or it can start to create a paper trail regarding her performance.

Terminating on the spot is definitely the high-risk option for all the reasons mentioned above. The lower-risk option would be to meet with Judith to discuss her past year’s poor performance. In it, managers should go over objective facts and figures and present her with a specific performance-improvement plan.

The plan should give her a reasonable amount of time to improve and outline some tangible, realistic objectives. Her managers should then follow up every so often to go over her performance since the counseling. (Following up is critical after counseling. Otherwise, the employee is likely to decide that her performance is no longer under scrutiny.)

If improvement is not forthcoming, termination at that point is a safer bet. Judith may still file a lawsuit—but at least the company will be able to show that it took steps to correct her deficiencies, giving it a more defensible position.

Don’t Forget…
When faced with performance problems,

1. Don’t encourage poor performance through neglect. Deal with problems immediately.
2. Try coaching and counseling before discipline. Document any discussions you have with the employee.
3. Create a performance-improvement plan with the employee. Document performance at all stages, as well as all your attempts to improve it.
4. Except in the case of flagrant poor behavior or performance, terminate the employee only after the improvement plan fails to correct the employee’s performance. Consult with an attorney if the situation is complicated by an employee’s membership in a protected class.