“You’d like to keep people like me out of your workplace,” says Attorney Donna M. Ballman, who often represents employees. “Try treating your employees as an asset, not an expense. A little attention now will help you avoid litigation later,” she says.
Ballman is the lead partner in the Fort Lauderdale, Florida law firm Donna M. Ballman, PA. Her suggestions for dealing with problem employees came at a recent audio conference sponsored by BLR®.
Spend Some Quality Time with Employees
Doctors who spend a little more time with their patients are the least likely to get sued. Employers are in the same situation, Ballman says. “I know one great HR person who’s very good to people, bends over backwards for them, and she’s never had a suit in 20 years.”
The Dumbest Things in Evaluations
Ballman then listed evaluation comments that brighten her day.
“Doesn’t fit the corporate image.” Ballman’s already counting the money when she hears this one, especially when it’s applied to the only black employee in the organization, to an employee who walks with a cane, to the oldest employee in the organization, or to an employee in a company where workers wear uniforms.
“Doesn’t get along with supervisor.” Ballman loves this one, especially when it comes right after the person reported sexual harassment by the supervisor. It’s even better, Ballman says, if the person has had good evaluations and then suddenly the negative one appears. “I also like it if the employee has just been given an award,” she says.
“Poor communication skills.” Too general, says Ballman. Her favorite was when this description was given to an employee with an accommodation for a speech defect.
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“Not a team player.” Again, too general, Ballman says. “It doesn’t inform about the situation at all. I especially like it right after a report of sexual harassment.” Her favorite was the employee whose “not a team player” rating was because she refused to go to a meeting that was being held at a strip club. “That gives me chills, and I can start counting the dollars,” Ballman says.
The secret is to spell out what you mean to say. If “poor communication” means the person uses poor grammar, say that. If it means that the person never talks, say that. If it means the person goes off and does things without input, just say that. “Otherwise, I’m going to look at it as ‘You don’t like my client’s accent,’” Ballman says.
What About Independent Contractors?
Employers are sometimes inclined to treat contract employees differently and as though they had no rights. Be just as careful with them as you are with regular employees, Ballman says. “In fact, most of the people you think of as independent contractors probably are not,” she adds.
What About Pregnancy?
You have to give the same accommodations to pregnant employees as you would give to anyone else (e.g., a male executive with a back problem). “But with pregnancy, use common sense,” says Ballman. “Pregnancy is a very sympathetic issue, both in court and in the eyes of your employees. Exercise caution.”
What About Unemployment Hearings?
Don’t lie to allow someone to get unemployment. Just don’t respond, Ballman says. “They’ll still get their unemployment, but you won’t be on record with a lie.”
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Ballman’s Rules of Discipline
- Understand—in the most specific and concrete details—what performance you expect from your employees.
- Paint a crystal-clear picture of those expectations for each employee.
- Intervene early, before you reach the “point of no return” with a problem employee. Raise your concerns while they are fresh.
- Train your supervisors to do steps 1–3 above.
- Focus on the true reasons for the poor performance. In many cases, they have nothing to do with work.
- Make sure that the problem employee is honestly a good fit for his or her job. (If there’s a mismatch in terms of skill levels, personality traits, etc., no amount of coaching and counseling will help.)
- Document the steps you’ve taken with a problem employee, but don’t stop there. Provide scheduled feedback as often as needed to keep the worker on track towards improving his or her performance.
- Set measurable, quantifiable goals for the problem employee.
- Always discipline employees in private.
- Never allow employees in sensitive or valued positions (e.g., your top sales representative, a longtime manager) any “get out of trouble free” favors. You must handle all problem employees fairly and equitably, regardless of their status, tenure, etc.
In tomorrow’s Advisor, we’ll have more of Ballman’s tips—including the dumbest reasons for terminations—and a look at a unique audit system that can keep lawyers at bay.
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