Don’t Rely on Employment At Will

Most managers operate under the delusion that the concept of “employment at will” will save their bacon when they don’t want to mess with an employee anymore.  Just fire them.  Done.  After all, that’s what employment “at will” is all about right?

Wrong.

It’s true that, in general, “employment at will” means that either the employer or the employee can end the work relationship for any reason or . . . no reason at all . . . as long it there wasn’t an illegal reason.  Just like that.  You can be free to work with other employers.

The main idea behind “employment at will” is that neither party is required to continue working together for a specific amount of time.  And you’re thinking, so what? Isn’t that how it’s always been?

Nope.

Employment at will evolved in the 1870’s, when laissez faire capitalism was starting to gather steam.  Before this time most employment relationships were presumed to be for a year at a time.  There was no quitting after a few weeks because you got a better offer. The doctrine of “employment at will” simply eliminated the presumption of a one-year employment term, allowing worker and employer to end the relationship whenever it didn’t suit either any longer.

Today in many states, “employment at will” has qualifiers.  In Utah, “employment at will” is still subject to notions of fairness regarding the reason an employment relationship ends.  In Utah, when you terminate an employee, the decision is subject to 3 notions of fairness, including (1) whether there was an implied contract (like making explicit verbal or written promises to an employee about job security) , (2) an implied covenant of “good faith and fair dealing” (aka requiring “just cause” to let someone go), or (3) whether the termination violates explicit, well-establish public policy (e.g., you can’t fire someone just because they filed a workers’ comp claim).

So, the next time, you’re fed up and just want to make an employee go away, hoping “employment at will” will be the reason.  Think again.  Here are 4 suggestions for laying groundwork just in case you end up firing someone:

1.            Have an “employment at will” statement in your employee handbook or employee policies.  Make sure all employees receive a copy of the handbook or policies when they are hired.

2.            Be honest with an employee about how he is not meeting your expectations.

3.            Don’t delay in addressing employee issues, thinking they will go away on their own.  They won’t.

4.            Talk to the employee in private about the issue(s).  AND summarize this conversation in the form of a memo of understanding (on company letterhead & dated) that clearly states the issue and what the employee is expected to do to conform to your expectations or to company policy.

5.            If the problem persists, issue a written warning to the employee(on company letterhead & dated), re-stating the problem , when you addressed it before with him, and noting that it is a serious matter that the employee must correct.  State in the warning that the employee will be “subject to discipline, up to and including dismissal”, if he doesn’t correct the problem.  Get the employee’s signature on this warning or at least have someone witness that you gave him the written warning if he refuses to sign it (and some employees will refuse to sign).

If the employee doesn’t correct the problem after getting a warning, you could discipline with an unpaid suspension or even termination.

With this basic documentation in place, an employer has a good chance of prevailing on an unemployment claim or even a workplace discrimination claim these basic with documents, showing the employee knew there was a problem and failed to correct it.

Nothing is a sure bet when dealing with employees. But don’t rely on “employment at will” as your only reason for terminating an employee.

anger; confrontation

Are You Leading or Bullying?

I feel like you’re intimidating and bullying me.”  These are the words of a female employee during a meeting with her male supervisor, who intended to set expectations with her. The supervisor was taken aback and started to question his behavior.

With stories of bullying of children frequently in the news, it makes us stop and think.  So, how do you know whether you are leading or bullying?

Keep in mind that a few employees will attempt to deflect attention away from themselves, especially when a work issue is being addressed.  One thing they may say, whether they really believe it or not, is that you are bullying” them.  It’s as though some believe that no one – not even their supervisor – has a right to set or clarify expectations for them at work.

Also, some employees may use the word “intimidation” when describing what it felt like when they were called into the boss’s office to discuss a performance issue.  Well, sure, it can be intimidating, especially for those who know deep down they’ve failed in their work commitment.  But that doesn’t mean the boss was purposefully intimidating and is a bully. But it does get at the fact that the use and misuse of power and authority is at the heart of bullying when the boss is involved.

Distinguishing  Bullying Behavior

According to the Workplace Bullying Institute, bullying is a “laser-focused”, “systematic campaign of interpersonal destruction” that has nothing to do with work itself and that negatively impacts the employee’s health, career and job.  A bullying campaign targets an employee for no good work reason. Such a campaign can cause the employee, who otherwise does acceptable work, to feel hopeless about the situation. Those targeted by bullying tend to be good workers, who are “independent” and not easily “subservient”.  G. Namie, The Challenge of Workplace Bullying, Employment Relations Today, 2007, 34(2), pp.43-51.

To help clarify, these are examples of when your behavior could be that of a “bully” instead of  that of a “leader/supervisor”:

Bully
Leader/Supervisor
During a performance review, the supervisor is intentionally biased or gives inaccurate feedback because he doesn’t like the employee even though the employee is a good performer.
During a performance review, the supervisor shares honest, substantiated feedback with the employee, whether or not he likes the employee as a person.
The supervisor deliberately excludes an employee from workplace meetings and activities for no good reason or for a concocted reason while other employees on the same team or in the same job classification attend.
The supervisor includes an employee in workplace meetings and activities that other employees on the same team or in the same job classification attend, even if the employee is not the best performer.
The supervisor instigates, encourages, or fails to stop others from spreading malicious gossip, jokes or rumors about an employee.
The supervisor refrains from joking about, gossiping or spreading rumors about any employees and addresses such passive aggressive behavior with other employees. Instead, the supervisor addresses any problematic conduct or performance with an employee directly and privately, giving them an opportunity to give their version of the situation.
The supervisor pesters, spies, or stalks the employee with no business reason for doing so.
The supervisor monitors all employees’ whereabouts and productivity if there is a business reason for doing so, and documents and addresses any issues of attendance or productivity privately with an employee, giving them an opportunity to give their version of the situation.
The supervisor criticizes or belittles the employee persistently or allows others to do so without saying anything.
The supervisor speaks privately with the employee if there are documented conduct or performance issues, getting the employee’s explanation during the conversation.
The supervisor metes out undeserved or unwarranted punishment to an employee.
The supervisor addresses only work related issues, gathering all relevant information regarding a situation, including the employee’s version of events, before deciding whether or not to discipline an employee for workplace misconduct.
The supervisor consistently gives a good performer assignments that are beneath his position to create a feeling of uselessness.
The supervisor holds all employees accountable to job performance standards and documents/addresses sub-standard performance with interventions such as re-training, job shadowing, etc.

The manner in which the supervisor interacts with an employee in any situation can increase or decrease the employee’s perception of being bullied, even if the supervisor’s behavior is not out of line. So, as a leader and supervisor, know when it’s appropriate to address a workplace situation with employees and do it professionally and respectfully.

co-dependent manager

Enabling Versus Empowering in the Workplace

Do you have employees who are poor performers or who don’t get along with others and who have been in your company for too long?  Why?

There is no reason why you should tolerate employees who continually produce substandard work, exhibit unsatisfactory attendance, or who behave badly as a general rule.  Yet, you, like most leaders, have at least a few of these employees.  The sad fact is that you have no one to blame but yourself.  Even in the public sector, where employees are entitled to “due process” before they are fired or demoted, it is very do-able to address the performance and behavior issues and even discharge someone, if warranted.

The issue is often includes a co-dependent manager, who would rather be liked than hold the employee accountable.  Another word for it is “enabling”.  Enabling behavior encourages the “bad” employee to continue being bad.  It’s the same dynamic between loved ones and an addict, which prevents the addict from addressing her addiction –like allowing drug use in your home or giving the alcoholic money for rent because she used the rent money to buy booze.  If you are “walking on eggshells” around an employee in your organization and avoiding a necessary conversation about unmet expectations, chances are, you are part of an enabling dynamic.

When you are an “enabler”, you prevent or interfere with holding the employee accountable to acquire new competencies.  It keeps her stuck in her unproductive performance and poor behavior.  Enabling keeps the employee believing she has no power or control over her life , her work, and her self-efficacy.  You become complicit in reinforcing unproductive behavior such as procrastination or passivity by not expecting more.  In short, if you are a co-dependent manager, you are silently communicating that the “bad” employee is not capable of changing and is not capable of taking responsibility for her performance or her actions.

Here are some examples:

  • Looking the other way when the employee mistreats a customer or co-worker.
  • Talking yourself out of addressing an issue as you pretend “it isn’t that bad”.
  • Giving the employee adequate performance reviews, so you don’t have to justify your observations of inadequate performance.

By avoiding the issue, you are effectively ignoring your duty to the organization and to the rest of the employees who are meeting company expectations.

If you are enabling an employee, you might fear the reaction from an under-performer if you address the work issues. Like the addict or alcoholic, the enabled employee will most likely have an emotional outburst that deflects the attention away from herself as she points the finger at others, including you.  Not a comfortable place to be.  In short, it’s just easier to tolerate the substandard employee and hope it doesn’t get any worse than it already is.

The healthier way of dealing with the substandard employee is to expect more of her by empowering her.  But this takes guts, an acknowledgment that it’s your job as a manager to do this, and a belief that it is better to respected than to be liked.

Empowering is behavior that expects the employee to acquire new competencies for better performance.  It increases the employee’s sense of control or power over a situation, and encourages the learning of new coping abilities to replace the unwanted behavior or performance.

What does empowering look like?  Good old-fashioned management:

  1. Talk to the employee about what you are experiencing, giving her a chance to explain;
  2. Restate your expectation for what acceptable work product or behavior looks like;
  3. Offer or require training if appropriate for the issue at hand;
  4. If applicable to the situation, ask the employee for options for how she can do things differently to achieve the results you expect;
  5. Follow up and follow through with the employee to make sure the necessary changes are taking place;
  6. If the necessary changes do not occur, start summarizing your conversations about performance or behavior with the employee in writing, and escalate the formality of the written summaries from a warning to reprimands to a letter of suspension or termination as warranted and according to your company policy.

As with many things, if you want an employee to change, you might have to change first.

 

WANT TO USE THIS IN YOUR NEWSLETTER, BLOG OR WEBSITE? You can, as long as you include this information with it: Beth Strathman works with executives and senior leaders to create team environments that optimize ownership, accountability, learning, and results. Learn more at firebrandconsultingllc.com.

feedback

Delivering Performance Feedback without Performance Evaluation Forms

I often rail against the typical, formulaic performance evaluation.  So, if typical performance evaluation forms aren’t effective for communicating a manager’s desired performance from employees, then what is?

Simple . . . a little something I like to call, “communication”.  Assuming you did a decent job of hiring a qualified, sane person for the job.)

I’m a big proponent of the adage a la Oprah that when “people know better, they do better”.  And for employees to know what “better” looks like, managers have to talk to them.  In turn, for managers to talk to employees, managers can’t be conflict avoidant (see December 2010 blog entry , “3 Reasons Why Being a “Nice” Manager is “Mean””).  So here are some tips for giving performance feedback to your employees:

Focus on an employee’s strengths.

If possible, assign employees to work on tasks and projects that will utilize their strengths.  They still must be able to perform the essential job functions, but when there’s a choice steer them to what they do best.

Communicate clear expectations to employees.

One of the biggest misconceptions managers have is that the employee SHOULD know what to do and how to do it.  Or that the employee interpreted the boss’s directions exactly how the boss intended them.  Wrong.  That’s why we have managers to make sure everyone’s on the same page.

Talk to employees about their work daily, weekly, and monthly.

It’s a manager’s job to talk to employees about their work, whether things are going well or whether there are problems. To do this, meet with employees at the outset of a new project to clarify your expectations and to get their input; check in with the employee regularly on an on-going basis to see if changes are required; and after the work has been done debrief with the employee to help reflect on what went right, what didn’t turn out so well, and what might be done in the future to achieve the best possible outcome.

Put your observations about an employee’s work in writing.

Whether an employee excels at the work or whether the employee’s work is shoddy, have a conversation with the employee about their work and put your observations in writing (give a copy to the employee).  Letters of commendation, letters of warning, and letters of reprimand should also be placed in the employee’s personnel file.

By following these actions, managers are able to create performance feedback that is more effective, timely, and believable than using the typical pre-fab performance evaluation form.

 

Want help planning out what to say to an employee about their performance? Get my Conversation Planner.

The Myth of the Performance Evaluation as an Effective Management Tool

performance evaluationLet’s stop pretending. Performance evaluations don’t work. But organizations do them anyway because they think that if they don’t do them, they won’t . . . . well, I’m not sure what organizations think will happen if they stop doing performance evaluations. Maybe they think won’t look like they are “managing” employees. Well, here’s a news flash: performance evaluations don’ t help you manage employees, and by using them, organizations are dodging the real problem: conflict avoidant managers.

The standard performance evaluation usually has a grade-card-like section that rates an employee’s ability to do aspects of the job or to exhibit the organization’s expected behavior. Seriously? NOW, you’re grading the employee’s abilities in these areas? Wrong. The time to grade the person was BEFORE you hired him . . . during the selection process. Grading the person’s abilities AFTER you hired him is a bit late. If the person made it through your selection process and landed a job he can’t do well or at all, you don’t need a performance evaluation tool: you need ways to assist you in hiring hire better. At this point, you’re really grading how well your selection process worked.

Also, research shows that it’s really difficult for an employee to turn ability deficits into strengths. So what do we think we’re going to accomplish by filling out a grade card on each year? Not a lot. Oh sure, you need to document poor performance to justify remediation or eventual termination, but you can do that in timely memos or letters created after each conversation a manager has with the employee about deficit performance.

You see, the real reason organizations create and use forms called performance evaluations is that managers are conflict avoidant. Managers cross their fingers hoping maybe the form will do the managing for them. But the forms don’t do the manager’s work. And that leads to the heart of the matter. Because even if managers have a handy form to communicate their perception of an employee’s performance quality and ability, they don’t do it! They often avoid the tough news anyway!

In my HR career, almost 100% of the time I found that each performance evaluation form in an employee’s file showed at least an acceptable if not downright stellar performance. Why? Because most supervisors don’t want to ruffle feathers or rock the boat by subjecting themselves to the negativity that might occur when bad news is delivered to a poor performer. Conflict avoidance.

Well, in my book, any manager, who hires the wrong person and doesn’t take timely steps to address performance issues when they occur, ought to experience a little negativity. The issue isn’t about the employee’s performance level or the fact that the company doesn’t use a performance evaluation form.

So, whatever shall we do without the performance evaluation? Trade all the time and money used to create, distribute, complete, file and store annual performance evaluations for management training on how to hire the right person in the first place. Oh, and use a hiring managers’ track records of hiring sub-par employees as feedback when talking to THEM about their performance.