Employment Law

Bad Apples 101: Dealing with Difficult Employees

No one becomes an HR professional, a manager, or a business owner with the delusion that it will be all puppies, rainbows, and cotton candy. So why do some leaders shy away from dealing with difficult employees or throw up their hands like there’s no solution? A recent case from the federal district court in New Orleans gives us a chance to examine how an employer handled a difficult employee and to explore strategies for dealing with challenging members of the workforce.

In the case, an African-American steel mill operator worked for nearly seven years as a self-proclaimed steady and reliable employee with a history of satisfactory performance. However, according to the employer, he behaved badly in a series of events that resulted in his discharge, including making repeat threats toward the company’s 401(k) provider that resulted in a last-chance agreement (LCA), refusing to undergo an evaluation of his fitness for duty (a condition of the LCA), and engaging in offensive and harassing behavior toward his supervisor.

Although the case arose under extreme circumstances, all employers have difficult employees from time to time. It’s important to know how to handle them — and how to do so legally.

Show Me the Money

Dwayne S. Gloster, who worked for ArcelorMittal LaPlace, LLC, sought a hardship withdrawal from his 401(k) to protect his home from foreclosure. In a series of phone calls, he violated the company’s antiharassment policy by refusing to verify his account, demanding “his money,” and making rude comments, including “smart a__ white boys” and “stop fuc____ people over on their money.” He claimed that “white boys do this to [me] every time.” He stated that he was going to “come over there and hurt somebody” and that he wished “Bin Laden would come back and drop a bomb on y’all.” Rather than fire Gloster for using inappropriate language and racial slurs and making threats and reckless accusations of racism, ArcelorMittal placed him on an LCA.

The LCA required Gloster to be evaluated by a psychologist before he could return to his safety-sensitive position. The psychologist noted that Gloster resisted the fitness-for-duty (FFD) evaluation despite being informed that refusing to comply would result in his discharge. Since the psychologist couldn’t determine whether Gloster was a direct threat or whether he could perform the essential functions of his job, he determined that Gloster wasn’t fit for duty and couldn’t return to work. He recommended that Gloster be referred for further evaluation.

Despite agreeing to undergo further evaluations, Gloster asked to resign so he could access the funds in his 401(k). The next day, he withdrew his resignation and asked his employer to return him to work or fire him. When his supervisor asked him to confirm his resignation, he frantically and angrily began screaming at her, including calling her a “white bitch.” Gloster refused to confirm his resignation. He said he “didn’t have time” for an FFD evaluation and never obtained a favorable evaluation as required by the LCA.

Gloster was ultimately fired for his behavior. He later sued, alleging that he was discriminated against because of his race and that “nonminority employees” were treated differently after being involved in similar incidents. ArcelorMittal maintained that Gloster wasn’t qualified for his position because he hadn’t been declared fit for duty by a physician, which was a condition of the LCA. The court found that Gloster did not show that he was qualified for his position because he failed to obtain a favorable FFD evaluation and comply with the LCA. As a result, his race discrimination claim failed. Gloster v. ArcelorMittal LaPlace, LLC, No. 13-3852, 2014 U.S. Dist. LEXIS 43600 (E.D. La., March 31, 2014).

Tips for Dealing with Difficult Employees

If you’ve had employees make rude or insulting statements, use angry or hostile tones, or shout at or berate other workers, you know that type of behavior can negatively affect the work environment. Address bad behavior quickly and appropriately. Let’s consider how you can handle problem employees while staying within the bounds of the law.

First, identify the unsatisfactory behavior and which policies are being violated. Once you’ve identified the problem, discuss the behavior with the employee. Be as specific as possible, and don’t try to avoid an uncomfortable conversation. Don’t be surprised if the employee complains, shifts the blame to others, or becomes belligerent, angry, tearful, or emotional. The goal is to agree that a problem exists and that the employee will keep his conduct within your policies’ boundaries of acceptable behavior. Remind him of the consequences for failing to improve his behavior.

Keep the conversation focused. Focusing on the employee’s performance and behavior will help avoid violating discrimination laws. Additionally, it’s important to ensure the employee isn’t being singled out or treated differently than other employees who have been subjected to discipline. Document the discussion, and make sure that all understandings are mutual. Share the documentation with the employee, and tell him it will be placed in his file.

If the employee isn’t willing to acknowledge the problem, state your expectations and the consequences for future infractions again, and end the meeting. Don’t let the employee take over. If the employee’s emotions are running high, schedule another meeting after he has calmed down. That way, you will be able to establish that he had a fair chance to end the problematic behavior.

Following up with the employee and his coworkers (if they have been affected) is just as important as the initial discussion. If the behavior isn’t corrected, the employee should be held accountable. Failing to do so may result in bad behavior by other employees. They will have no motivation to follow the rules if there are no consequences.

If the employee’s behavior still fails to improve, consider implementing an LCA or issuing a final warning in lieu of immediately discharging the employee. Require the employee to (1) acknowledge receiving the document and (2) agree to comply with your personnel policies or be discharged. Doing so will make it clear that this is his final chance to improve. Also, it will help defend against litigation that results from his discharge.

Don’t forget to document attempts to resolve misconduct. We suggest oral or written corrective action that includes (1) a clear statement of the employee’s poor performance or bad behavior, (2) an explanation of your expectations, and (3) the consequences of failing to improve (e.g., further disciplinary action, up to and including discharge). Corrective action should always be well documented and retained as part of the employee’s personnel file.

Of course, if you’re unsure of how to handle a difficult employee or whether your approach is flawed, consult an employment attorney on the front end. One final point: Please never lose sight of common sense. If an employee becomes violent or threatens to engage in violence (or other criminal behavior), don’t hesitate to call security or law enforcement.

Jennifer L. Anderson is a partner in Jones Walker‘s labor relations and employment practice in Baton Rouge and an editor of Louisiana Employment Law Letter. She may be contacted at janderson@joneswalker.com.