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Handling problem employees

By:
  • Jared Nusbaum
- Posted: December 12, 2018

Every business has had a “problem employee” — someone who can’t get along with coworkers, violates company policies or ignores directions. Problem employees drain productivity and morale, so it’s important to have a method for managing them. The following steps can help you hold employees accountable for problematic behavior and offer a path to handling termination.

Have an employee handbook

1 Employee handbooks are your best friend. Your employee handbook should specify which workplace behaviors are appropriate and which are not. Most handbooks include policies on topics like sick leave, overtime and harassment. But it’s fine to specify expectations around attitude, interaction with coworkers/clients/the public or use of electronic devices at work. Just make sure these are standards you’ll actually enforce.

Since you can’t anticipate every possible behavior, consider general language that prohibits behavior that damages the company’s reputation or presents the company in a bad light. Ultimately, you want to be able to point to some part of the handbook when discussing problem behavior.

Handbooks should describe your discipline policy. This way, employees know the risks of bad behavior. It also promotes uniformity in disciplinary actions, which can help protect you if an ex-employee claims that they were disciplined for unlawful reasons.

Make sure that new employees review the handbook before beginning work and have them sign a statement saying they received and understand the handbook.

Address problem behavior directly

2 When you witness or hear about problem behavior, investigate what happened. Depending on the severity of the issue, your investigation might be as simple as playing back the event in your mind or talking to coworkers who witnessed it. For serious events — such as those that damage property or cause injuries — conduct an in-depth review. Since the consequences will be more severe, you want to make sure you’re holding the right people accountable.

Your next step will be to determine if there was a policy violation listed in the employee handbook. It’s unfair to discipline employees for something they didn’t know was wrong. You want to be able to show that they knew the behavior was prohibited, even if it seems obvious. Something that seems common sense to you may be less obvious to someone who lacks the same industry experience, general work experience or cultural context.

Once you’ve conducted interviews and decided if there was a violation of company policy, meet with the employee promptly. This doesn’t need to be a formal meeting — depending on the severity of the incident, it could just mean taking the employee aside for a minute on the job site — but responding promptly makes it clear that you take the behavior seriously. Identify the problem behavior, explain why it’s not acceptable and explain that discipline may result.

Document everything

3 It’s easier to see where you are in the disciplinary process — and to make decisions about retention or termination — if you have clear records of employees’ past behavior. For problem behavior, it’s a good idea to document the following:

• What happened

• The policy that was violated (and the fact that the employee knew about the policy)

• That you explained the problem to the employee

• That the employee agreed to refrain from that kind of behavior in the future (and, if necessary, the steps the employee will take to ensure that the behavior doesn’t recur).

You might have the employee sign a document acknowledging the information previously mentioned. If they refuse to sign the document, explain that it will still go in their personnel file. You can add it to the file with a note that the employee “refused to sign but reviewed the information with me during the meeting.” You may want to keep witness statements and other investigation materials separate from the personnel file. Be sure to check your state’s laws on which items must be included in a personnel file.

If future violations occur, document the same things. For repeat offenses, stress that the problem has occurred before, the employee has been warned and the employee has failed to change their behavior.

 

When you have to terminate

Follow your handbook’s procedures when making termination decisions. Consider similarly situated employees when making a termination decision; if you terminate a person for violating a specific rule, be consistent with other employees. Some tips for handling the termination meeting:

• Remain calm.

• Have your Human Resources director (or, if you don’t have one, another senior-level person) sit in on the meeting as a witness that everything was handled professionally.

• Explain to the employee that they have violated a company policy and are being terminated for that violation.

• Have a written memo explaining that the employee is being terminated for repeated or serious policy violations. Identify the policy or policies.

• Don’t get drawn into arguments. If the employee accuses you of something, reiterate that they are being terminated for a policy violation.

• Try to have the termination take place in an office or another out-of-the-way location to avoid unnecessarily embarrassing the employee.

• If necessary, make arrangements for the employee to be escorted off the premises.

• Have the employee’s final paycheck ready. If it’s not possible to pay all wages at the time of termination, send the check as soon as possible. Most state laws impose strict deadlines for payment of final wages.

• If the employee signed a non-compete agreement, give them a copy. Remind them that your company enforces such agreements to the fullest extent possible.

• Take possession of any company property and keys.

• Confirm the employee’s address so you can properly complete tax forms, distribute final wages and provide any documents to the employee.

Jared Nusbaum is an attorney with the law firm of Zlimen & McGuiness, PLLC in St. Paul, MN. His practice areas include employment law, small business law, litigation, and bankruptcy. Email him at jnusbaum@zmattorneys.com.
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