In many relationships in life, hope can be a pretty good strategy. But the relationship between a manager and his or her employees is not one of them. Hope is the crutch of an ineffective manager, someone who invites otherwise avoidable litigation. I’m here to tell you: manage your employees or get out of the way.
Instead of actually addressing problems when they arise, ineffective managers rely on hope. They hope an employee will decide to start getting up earlier and arrive on time. They hope that the employee will rise to expectations. At wits end, they hope that an employee will move on to a “better opportunity.” All the while, that employee grows more and more comfortable with the lowered expectations that are steadily established as the office norm. Worse still, other employees see firsthand the lack of consequences for poor performance.
The problem
When the ineffective manager, wanting to look like the “good guy,” praises an employee for what he does right and fails to confront the employee for what he is doing wrong, the problem continues to grow. Even the worst employees are usually productive 90% of the time. And by ignoring that 10% of work product below expectations, the manager opens the company up to litigation.
Those “under-the-radar” messages you are sending to the employee when you dummy down his job, or fail to include him on meetings or invite him to lunch, are going to backfire. The message he receives is not that his performance is deficient — it’s that you are a jerk, and that you dislike him for personal or illegal reasons. The employee could then misplace his anger and blame because the manager’s dissatisfaction was never communicated to him. When the employee is eventually terminated (and legally it doesn’t matter whether he was terminated, even if he resigns he can claim that he was forced to resign under constructive discharge), he will leave angry, sometimes angry enough to file a lawsuit.
The solution
The answer to this problem is to address performance deficiencies when they occur so that the employee understands what he needs to do in order to be successful. After all, the purpose of performance evaluations is not to catch the non-performer and berate him, it’s to guide and motivate the employee to become a better worker, a worker who knows what’s expected of him. When a manager fails to clearly communicate his expectations and dissatisfaction, the failure of any employee can be placed firmly at the feet of the ineffective manager.
If a problem employee fails to improve, a jury is much more likely to believe that a manager did not act unfairly or illegally if the manager can show that the employee received fair notice. A good gauge of fair notice is progressive discipline. Progressive discipline basically calls for an oral warning, followed by one or two harsh written warnings, then termination. The point is that discipline gets progressively harsher, until termination is the only option. However, don’t assume that just because you checked the progressive discipline boxes you can terminate the employee and not worry about a lawsuit. The fairness test is not whether you followed the progressive discipline model; the test is whether the employee has fair notice of the problem and fair opportunity to change his behavior.
The crucial question to ask before any employment decision, such as termination, is: will a reasonable jury agree with you that you gave this employee fair notice? If the answer is no, then all the disciplinary reports in the world won’t stop the jury from nailing you to the wall with their verdict.
Finally, it is important to understand that, in reality, juries usually do not decide cases based on what is a “discriminatory discharge” or an “adverse employment action.” Instead, juries go with their gut when deciding cases. If you follow the above recommendations, you hopefully won’t get to court in the first place.
Chad A. Schultz is a partner at FordHarrison LLP and co-author of the book
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