A Cautionary Tale—How Many Zeros?
One juror explained the simple system his jury had used to determine the amount of punitive damages they would award: they started with one dollar, and added a zero for each thing they thought the employer had done wrong. The total added up pretty fast.
How do employers get into these situations?
You know you should be coaching Terry, but you’re busy, and Terry’s doing OK. Well, OK is overstating it, but what a hassle to get someone new, right? So you give Terry a small raise and a "Satisfactory" rating and life goes on.
Unfortunately, this all too common scenario is a lawsuit waiting to happen. Here’s how it’s going to unfold.
Eventually, you’re going to let Terry go. Either there’s pressure to cut positions, or you just can’t stand the poor performance one more minute. "It’s because of poor performance," you say, as Terry heads out the door.
Unfortunately for you, Terry’s not going home, but to the attorney’s office.
Later, in court, Terry says, "You fired me because I am … [choose one or more: disabled, black, white, old, female, male, transgendered]."
"No, no," you protest, "it was performance. Terry’s performance has been terrible for years."
You’ve already lost, you just don’t know it. Here come the questions:
Did Terry get a raise each year?
"Well … yes, but …"
Did Terry get a bonus each year?
"Well … yes, but …"
Is this your signature on these appraisal forms that say Terry’s work was satisfactory?
"Well … yes, but …"
At this point, it’s to late for "buts." The jury is just wondering, how many zeros.
Clarify and Coach
The cautionary tale above should help you convince your managers to get their heads out of the sand and address performance issues. You can present the task as a simple "two-C" process—Clarify and Coach.
1. Clarify. First, clarify with employees what you expect of them and how you will measure their efforts. Juries expect this as a basic element of fairness. Juries won’t hold employees to expectations they didn’t know about, or that were too vague to be measured.
2. Coach. We’ll talk more about coaching in our next issue, but the main thing is that coaching is frequent, immediate, and specific. It’s a helping role, but it’s a performance management role as well.
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Follow the Two C’s and guess what? Come appraisal time, your work is already done. The combination of regular coaching and clearly defined goals let’s the performance management system be the messenger of any bad news. The employee knows what’s coming—there’s no surprise.
Should termination ultimately result, that will be no surprise either, because you’ll have a string of honest coaching sessions and appraisals to back you up.
If an employee still tries to sue, it’s unlikely that an attorney will take the case, but if you do ever get into court, you will be able to show convincingly that expectations were clear, that the employee failed to meet them, and that you gave frequent assistance and guidance—every chance of success.
Better solution? Hire the right people in the first place. But for some positions, it’s not easy to hire anyone at all. Fortunately, there’s a timely webinar, July 16—
Win the Talent Scarcity Fight: How to Recruit and Retain for Hard-to-Fill Positions
Win the Talent Scarcity Fight Webinar—July 16 
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It may seem odd that so many employers are struggling to find well-qualified candidates during this time of high unemployment. But there has always been a misalignment between the skills most applicants possess and the skills the organization needs. In addition, workers may be seeking more in terms of pay and benefits than the your organization is prepared to offer. And small- to mid-size employers are particularly vulnerable to talent shortages.
Fortunately there’s timely help in the form of BLR’s new webinar—Win the Talent Scarcity Fight: How to Recruit and Retain for Hard-to-Fill Positions. In just 90 minutes, you’ll learn everything you need to know about how to find the best candidates to fill mission critical positions so you can keep your organization moving forward. Register now for this interactive event. Register today for this interactive webinar, and learn how to keep the feds and the attorneys at bay and your organization in compliance.
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“One juror explained the simple system his jury had used to determine the amount of punitive damages they would award: they started with one dollar, and added a zero for each thing they thought the employer had done wrong.” This is simply horrifying.
Clarify and Coach–I agree that these are two critical components (pardon all of the alliteration) to performance evaluation that are too often overlooked.