Are You Afraid To Discipline Or Fire Employees Because They Might Sue You?
Douglas D. Chasick, CPM®, CAPS, CAS, Adv. RAM, CLP
The Apartment Doctor™ / www.NOINews.com
If you answered "yes", welcome to the club - you're not alone! During the course of my seminars and presentations, I have the opportunity to speak to many people who complain that they feel "stuck" with someone who isn't performing. Well, I have good news and bad news for everyone who feels that way:
The BAD NEWS is this: WE created the problem! That's right, YOU and I! How? Two ways: We hired the people in the first place. (Don't tell me you "inherited" the staff - if you let them stay after you showed up, you hired them by default!) Did we check ALL the references? Did we test them, not only for skills, but for temperament and compatibility? Did we let several existing employees, the people the new employee would work with, interview our perspective employee? And, after we did all that, did we listen to our "gut"? (Those of you who know me know that I maintain an exceptional gut for exactly this purpose - it's a sacrifice I make for our great profession!)
The second way YOU and I created this problem is the way we have disciplined and fired people. Do we immediately address any performance problems we discover, or do we wait, and let the problem ferment and age, like a fine wine? Do we take people aside to discipline them in private, without causing them to be embarrassed and humiliated in front of their peers? Have we DOCUMENTED our conversations with problem employees? Have we given them a SPECIFIC, written plan, with measurable goals and deadlines, so they could improve their performance and continue their employment? Or is the entire discipline process just a way for us to vent OUR anger and frustration?
Here's the GOOD NEWS: By following these simple steps, you can rid yourself of MOST of the fears associated with disciplining and firing people (I say MOST because this is America, which means anyone can sue anyone else, even if they have no case!) Just observe these guidelines CONSISTENTLY, and assist your people to improve their performance (or give them the opportunity to find happiness in some other profession.)
AS THE LEADER, YOU SET THE EXAMPLE OF ACCEPTABLE BEHAVIOR:
Yes, the old "Lead by example" trick. Whatever you do and say becomes "O.K." behavior for your employees. If you disregard company policy and procedures, don't follow the rules, don't observe the dress code, make personal calls, come in late and/or leave early; whatever you do is what your employees think they can do (or should be able to do)! The policy manual is meaningless unless YOU follow it. These days, RANK HATH NO PRIVILEGES! If you want to motivate your employees and avoid lawsuits, REMEMBER that you always lead by example - whether the example is good or bad - so act accordingly! It is tough to defend disciplining or terminating an employee for doing things that YOU DO!
BE CONSISTENT IN YOUR TREATMENT OF EVERYONE: This is a biggie! You cannot "play favorites", overtly or covertly - it's the quickest way to create dissension and give someone a VALID BASIS for a lawsuit - they call it discrimination. Everyone must be treated the same, given the same training, the same counseling, the same discipline and the same "breaks." Period. End of discussion.
KNOW YOUR COMPANY POLICY AND PROCEDURES: As the manager, you are the authority. It's your responsibility to know the rules: What are the grounds for immediate termination (YOU SHOULD HAVE A SPECIFIC, WRITTEN LIST), do you have to give a problem employee written notice of a problem, how soon after termination must they receive their final paycheck, etc.? Make certain you know these rules BEFORE you have an incident - so you can guide your actions based upon company policy - or work with your supervisor to change company policy.
FOLLOW THE ESTABLISHED COMPANY POLICY OR WORK TO HAVE IT CHANGED: But don't bad-mouth it to your employees! If your company has a published policy and procedure manual, those are the accepted rules for behavior. If they are outdated or don't make sense to you, handle it with your supervisor. When a new memo comes down, support it and enforce it to your staff - if you don't like it, talk to your supervisor. Voicing your displeasure and disagreement to your employees may make you "one of the gang" but it also makes you liable! A disgruntled current or ex-employee can claim that you didn't follow the established personnel policies.
WHAT ABOUT "UNWRITTEN" POLICIES AND PROCEDURES? How many of you have taken over a new property, started eviction proceedings against a few residents, gone to court, and have the judge throw out the case because the rent payment due date was never enforced? They call it "implied consent" - even though you have a written policy, you don't enforce it - so you're implying that people can pay whenever they want to. The same principle applies to personnel management. If you don't enforce the dress code, you can't suddenly fire somebody for not following the dress code. If you always let your staff come in "a little late", you can't fire someone for tardiness. Here's the solution: Create a memo that restates the policies and procedures that aren't being followed and give it to each employee. Instruct them to read AND SIGN the memo, indicating that they read it, they understand it, and they agree to abide by it.
KNOW THE TERMS OF THE EMPLOYMENT AGREEMENT FOR EACH OF YOUR EMPLOYEES: What, you don't have a formal, written employment agreement? Are you sure? What about the letter sent to someone offering them a job? What about their employment application? What about statements and representations made to them during the interview and/or when they were offered the job and hired? VERBAL STATEMENTS? Well kids, many courts have held all of the above to be valid, binding, legal employment agreements! Make sure you do your best to confirm any "promises" made to employees, written or verbal, before taking action.
HAVE WRITTEN GOALS AND OBJECTIVES FOR EACH EMPLOYEE:
Whether new or existing, each employee should receive a written statement of EXACTLY what goals and objectives they are expected to meet, and by when they are expected to meet them. All too often, employees are terminated because "they aren't getting the job done"; "things just aren't working out"; or some other non-specific reason. If each employee has a written statement of what they're supposed to do, that they have agreed to by signing, it becomes easier to support them in doing their job, and to defend yourself if they don't do their job!
CONDUCT FREQUENT PERFORMANCE EVALUATIONS: Most of us are accustomed to waiting to receive "The Annual Salary Review," which typically doesn't get done on- time! Call me zany, but that tells me we have to wait an entire year to know if our boss thinks we're doing a good job. (Most bosses will let you know if you're doing a bad job just a tad sooner!) I don't have a problem with SALARY being reviewed annually, but why not conduct PERFORMANCE evaluations more frequently so that you and your employees are regularly communicating about what is working and what's not working? How often? I think quarterly is the absolute minimum; I recommend MONTHLY PERFORMANCE MEETINGS!
This doesn't need to be a long and elaborate meeting - it can be done effectively in 30 minutes. Are you willing to invest 6 hours a year to support and assist your employees in doing the best job they can? Of course you are! You're probably spending LOTS more time than that now, dealing with what's not working! Go over the written goals statement (#7, above) each month, and give specific, written correction if needed. If you have to terminate an employee, these FREQUENT REVIEWS will go a long way to show you were doing everything you could to make things work.
BE 100% HONEST IN YOUR PERFORMANCE EVALUATIONS: If you're not COMPLETELY honest when telling someone about the areas of their performance that need improvement, how do you expect them to improve? I know it's a little "confrontive", but it's better than "being nice" and then having to fire them later! This DOES NOT mean you have to be mean, cruel or rude - just completely honest. If you are regularly communicating with your employees about their performance, and you still have to fire them, you can prove that you did everything possible to get the employee "back on track."
THOROUGHLY DOCUMENT ALL MEETINGS WITH ALL EMPLOYEES.
If you don't already have one, create a one-page form for meeting with employees. Note the employee's name, the date and time of the meeting and the reason for the meeting. Write down what was said by both you and the employee, especially actions and deadlines to be met. Have the employee sign the form; if they won't, note on the form that you asked the employee to sign it and they refused. File the form in their file and give a copy of the form to your supervisor if appropriate. If an employee files a grievance in the future, or disputes their termination, your notes can be important evidence supporting your side of the story.
HAVE SOMEONE ELSE PRESENT WHEN YOU FIRE SOMEONE: As a practical matter, your supervisor or one of YOUR peers should be present when you terminate an employee. (Don't use one of the terminated employees subordinates - it only embarrasses them.) This will tend to keep tempers from flaring, and obviously provides a witness to the termination process in the event you have to defend it in the future. Even with a witness, WRITE EVERYTHING DOWN!
FOLLOW ALL LAWS: There are over 400 Federal laws regarding employment, and many states have rules about how soon after termination you have to pay the ex-employee, or what type of notice must be given to them. Don't forget about C.O.B.R.A. notification, either! This is no time to be guessing, do the research and make sure you are in compliance!
BE AWARE OF WARNING SIGNS GIVEN BY EMPLOYEES: If any of your employees have complained to anyone else about ANY alleged problems with you or your company, even jokingly, take notice. Unsafe working conditions, sexual harassment, or ANY type of discrimination complaints must be addressed immediately. If you don't handle it immediately in your office, you may find yourself handling it in court.
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