The Conversation: Doing it Right

Article

I can’t tell you how many times clients have posed to me the following scenario: We’ve got a long time employee who is either over 40, perhaps also non-white, possibly disabled, and most importantly, not performing up to their prior standards and our expectations. What should we do? And, oh by the way, we don’t want to get sued!

Here are my suggestions, including The Conversation, for you to consider:

First of all, is it really about the employee? As Dr. Deming, Peter Drucker, Peter Senge and any other management guru named Peter with their head screwed on straight will tell you, management should not put itself in a position where it is responsible for the success of employees but rather in a position where it is responsible to those employees for their success. Again, the ultimate responsibility of management is to people, not for them. We are responsible to people when we create a system that allows them to do what they can do well and enjoy doing well. This is not rocket science; it is flat out common sense. Isn’t it true you work best when you are doing what you can do well and enjoy doing well? Truth is, anything else is asking for trouble.

Given our scenario the first question is, “Does the employee have the skill set necessary to do the job?” And if they once did have that skill set, has the job evolved to a place where they need additional training? Have you allowed them or encouraged them to take on that additional training? Or are they turning into dinosaurs?

Secondly, if we assume that they can do it, why aren’t they doing it? What else could this mean? Are they burnt out? If so, perhaps they need a sabbatical. Given the cost of turnover and lawsuits it may be better to give them a month off than to give them a pink slip. Is there something else “up?” Is there a “disability” that is hampering their performance? If so, they may have protections under the ADA as well as state statutes such as California’s Fair Employment and Housing Act. If a disability is affecting their performance, the question becomes whether or not you can accommodate that disability so that they can continue to perform. Remember, no matter the legal obligation, an employee still has to be able to perform their essential job functions with or without an accommodation.

Now let’s assume that they have the willingness to perform but their skill set has lapsed. The reality here is that both parties have probably been irresponsible—the employer to their system and the employee to themselves. If that’s the case, The Conversation might go like this:

“I know you are a good person and you have been with us for many years. Over those years your job responsibilities have grown and changed. I see that you are still making the effort to perform but unfortunately not to your previous levels or our expectations. It seems to me that you share this frustration as well. Do you think that if we put you through an extensive training program your performance would change to the point where you once again feel good about your job and so do we? If you don’t think that solution would work, what is it that you propose — because quite frankly, we are stumped trying to come up with a better idea?”

At this point they will let you know if they want to go through the effort of re-training. Sometimes old dogs refuse to learn new tricks. Perhaps they have a good idea you overlooked. If that’s the case, even better. Perhaps there remains enough demand for the good skill sets they still have so you can exploit them all of the day, not just some of it. In that case you could restructure their job assignment and perhaps their pay as well.

Now let’s assume they have the skill set and job restructuring is out of the question but for whatever reason they are not performing—and from what you can tell it has nothing to do with a possible disability. Perhaps they are simply worn out. If that’s the case, The Conversation might go something like this:

“You have been with us for a long time. You have an incredible skill set. But as you probably sensed, we haven’t noticed the drive to perform as in the past. Unfortunately we have had to give warnings about ________________, ________________, and __________. The fact is we can’t continue to do business like this. We not only have a responsibility to you, but to the entire organization, including our clients and your co-workers. We are at the point where we don’t know what else we can do. We do care about you, but we also care about having the company’s needs met.

“Can you think of anything that can be done to turn this around? Would you like some time off so you can consider this? Take a look at this Employee Correction Form and please fill it out so we can have your suggestions memorialized in writing. If what you suggest makes sense, we’ll try one last time. If what you suggest doesn’t feel right for us, then we will have no choice but to end our relationship despite our wishes to the contrary. Does this approach make sense to you? Because quite frankly we don’t have a better idea. Do you?”

If at that time, they decide to adopt a victim mentality and start blaming other people for their circumstances, then you may want to consider suspending them for two or three days without pay so they can go home and rethink matters. The point is—there is no rush. Chances are this has been going on for quite some time in any event. What you want to do is make sure you “get it right.” That you have checked your head to make sure it is not your system that is at fault. That you have made sure there is no disability or discrimination type laws in the way. And lastly, that you have given the employee every opportunity to take responsibility for their performance and step up to the plate. When you have done all these things, and the situation doesn’t change, it’s time to “liberate” them. The fact is, a continued relationship will do both parties harm.

There’s a simple test of when it is time to “liberate” someone. Very simply, if they quit would you be relieved or upset? And, if the former, why are they still there? When counseling employers I often find that there are three reasons why we have a fear of liberating people.

They are afraid that the “system” will walk out the door. I recently spoke to a group of CEOs and one of them stated she delayed firing her CFO for that very reason. At my office, we have Standard Operating Procedures for everything that everybody does. I call it the Mack Truck Rule. If a Mack Truck hit anyone of us, somebody would be able to step in and do his or her job. For example, I own five Web sites. There is a ton of technology that went into them. If my IT person got hit by the Mack Truck or decided to get up and leave my company, I would be in dire straights if I had not reduced everything that she knows and does to writing. I actually then had a third party review this and asked if that circumstance were to occur could they step in and do her job. Until they said, “yes” we continued to refine the SOP. This is one way to not be handcuffed by an employee. You are system dependant, not people dependant.

They are afraid of getting hit with a lawsuit. Perhaps because they did a poor job of documentation. Fact is, even if you’ve done everything suggested in this article; you may get hit with one anyway. The good news is, I’ve never seen a company go out of business because of an employee lawsuit. The bad news is, when things feel unfair, people can file lawsuits whether legitimate or not. Finding an attorney to support them in this effort is not a difficult task.

Lastly is, the emotional reason. We know that as soon as we terminate someone we will be cast in the “villain” role. And nobody I know enjoys being villainized. We have to make sure that we don’t get sucked into this employee’s drama. We must realize that drama queens and kings are out there. They can be wholly irresponsible for their career and then go blaming someone else. As long as employers stay “above the line” and act responsibly, you have the emotional ability to let go. Getting sucked into an employee drama is much easier when we know that we’ve been less than fully responsible.

So, that’s powerful information on how to have The Conversation and know when it’s time to let them grow, or let them go. If you are interested in the Employee Correction form or Pre-termination Checklist send me an e-mail at don@hrthatworks.com.

Don Phin, Esq. is president of the Employer Advisors Network Inc., a company designed to help agencies and their clients prevent claims and boost productivity. Phin gives risk management and practice development workshops for insurance agencies nationwide, many of whom license the HR That Works Private Label Program.To learn about the HR#ThatWorks! Private Label Program for agencies, contact Phin at (800) 234-3304, don@hrthatworks.com or www.hrthatworks. com.

Topics Training Development

Was this article valuable?