Third Chances
Addressing Repeated Issues
How do you know when to draw the line with an employee? Especially when it’s one of your best performers. Imagine that your business depends on a core group of employees to perform well day in and day out. You’ve noticed one employee who performs extremely well technically but you’ve noticed that over the last two months he’s been repeatedly late or absent for his shift. As a matter of fact, you review his attendance and find that he’s been late by more than 10 minutes on nine occasions. You’ve asked him about the issue before but the only response that he gives you is that traffic is bad.
On the other hand, you have another employee who has been with your team longer but struggles technically and requires a great deal of support. He’s just called in for the fourth time in the last two weeks saying that he’s going to be more than 30 minutes late. There’s no valid excuse offered. He’s just going to be late. It’s evident that this employee is not helping your cause. You’re tired of feeling that your employees are taking advantage of you and decide he will serve as a great example when he’s fired after he arrives.
Texas is an “Employment at Will” state so it should be just as easy as making the decision and delivering the news, right? Well, maybe. You have a basic attendance policy somewhere in one of the binders on your bookshelf but there’s been no communication to employees. The importance of getting to work on time should simply be “common sense”, right?
Realistically, it’s not that simple. You can be terminated in an “employment at will” state for just about any reason… or no reason. But an employer is at risk of a “wrongful termination” if there are other issues at play such as written or implied promises of continued employment, evidence of misleading or lying to the employee, discrimination, retaliation and the like. If the employee makes such a claim, the burden of proof then falls to the employer to show that the action was appropriate.
In this particular case, there are at least two known risks. First, there’s no evidence that you’ve shared the attendance policy with the employees and second, you’re being inconsistent in how the policy is administered. If the fired employee challenged the issue, you would first need to be prepared to defend your actions. And in that case, communication of policy and consistency in how that policy is administered is going to be your best approach.
Let’s say for a moment that the terminated employee claimed that they were let go because of discriminatory practices as they are minority or over 40 years old. You are then on the hook for somehow demonstrating that the decision was based solely on the attendance issue. How do you do that if you have no documentation to support it?
This is the reason that it is so important to follow a couple of basic HR practices. First, ensure that you provide each of your employees with an employment handbook that captures and explains at least the most basic expectations such as attendance, prevention of drug and alcohol use, safety, etc. Have the employee sign a confirmation page indicating that they have received it.
Second, ensure that you’re following effective performance management practices. At a higher level, performance management is about ensuring that there is a plan on how business is to be performed. But in this case, it’s an incremental approach to correct a performance or behavior-based problem. It often starts with a basic verbal warning, then progresses to a written counseling notice, a written warning, perhaps a final written warning and then termination. The key message in each of these steps is that you are trying to bring the issue to the employee’s attention and the desire is to return them to good standing.
An effective performance management process will help you in several ways: It will provide structure so employees know what to expect, it serves as a solid communication tool ensuring that expectations are conveyed and it provides the best chance of turning the situation around before it reaches the termination stage. If you are ever challenged on a termination, you will want to be able to demonstrate that the decision was appropriate based on the policy violation and that you are consistent in how you administer that policy. Otherwise you run the risk of having to pay back and future wages as well as court costs and attorney’s fees.
Remember, your communication to an employee that there is a problem is the first step in getting it corrected. And consistency in how you address issues is your best bet in making sure that you avoid a compliance problem.
