The HR Daily Advisor was recently at the 2016 SHRM Annual Conference & Exposition in Washington D.C.! Yesterday we heard about the problems that bad employees create from Greg Hare, an employment lawyer at Ogletree Deakins Law Firm in Atlanta, GA. Today, some advice on what to do about them.
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Hare says the most important thing when it comes to eliminating a bad employee, is to have a system for dealing with them. He states “It’s a good idea to plan ahead.” That plan might include the following strategies.
Make your frontline supervisors aware of your plan. Hare says to consider giving a “hot topics on employment law” at your annual management conferences, or at other similar workplace gatherings. Everyone will then be aware of the current legal landscape surrounding employment law and will be on the same page.
Be prepared to confront your problem makers. Hare suggests that it can be damaging to have a bad employee stay and damage morale and push away good employees. Hare suggests that such damage could easily outweigh the potential for a legal situation arising from firing a bad employee. “When in doubt, run your business” says Hare. He also says it’s important not to “let some remote possibility that you might get sued stop you from doing the smart thing.”
Have a rock solid job description. Hare suggests having a professional put your job descriptions together—the investment will pay off by preventing lawsuits down the road. It’s too easy to rush a job description which opens you up to litigation later on. For example, having iron-clad job duties and essential job functions outlined on your job description can help keep things clear in a legal situation.
Learn about the difference between “failure to reinstate” and “wrongful termination.” Hare recommends that you have your legal team, HR professional, or someone similar brief you and your managers on the difference. According to Hare, In the event that a lawsuit is inevitable, it’s better to be accused of “failure to reinstate” than “wrongful termination.” As with any protection against bad employees, it’s important to only use such things where appropriate—never as an excuse to get rid of someone.
If you have an employment contract, understand the limitations of automatic termination provisions. Hare says that these are never as straightforward as they seem. Just because such provisions might be in your contract does not mean they hold up to the light of the law. Conversely, well-worded and straight forward provisions like these can be very helpful in clarifying a sticky situation. If you are going to use them, read up, and lean on someone with legal knowledge for help.
We should mention that these are broad ideas. It is wise to consult a legal professional when you consider letting someone go.
Yes, sometimes employees go sour on a company and you need to part company. Documenting the trouble is good, but why not have an honest conversation with the employee that you’re going in different directions, especially if they’re an emotional problem for staff. Don’t judge them, just deal professionally with their incompatibility with your organization.