By Jonathan K. Driggs, Attorney at Law

One of the signs that you’ve been an employment law attorney for too long is that when one of your kids misbehaves you shout out, “that’s it! I’m writing you up!” (Oh, and let me tell you, this goes over real well with the kids.) For many years I have been advising employers on how to deal with employee misconduct and poor performance. I know from my experience that this is the part of managing that most of us really don’t like. But it really doesn’t have to be so bad, and perhaps, we’re seeing it all in the wrong light. The following are some thoughts to consider.

Be a leader: You may find this surprising, but too often managers do not think of themselves as leaders. Instead, they think of themselves more as overseers or graders. Things get more interesting and constructive when a manager looks at the struggling employee and thinks, “how can I lead this person to a more successful level of performance?” Dealing with employee misconduct and poor performance is where managers practice their art as leaders and coaches. It can be a very satisfying experience to help an employee turn his or her poor performance around.

Avoid silence: Wow, the damage done by silence is hard to overstate. The impact is massive! It is by far the most common problem I see with managers. Here’s a quick list of some the consequences of managerial silence: 1) it allows the employee to remain comfortably in denial, 2) it functions effectively as “documentation” that supports the employee’s claim that he or she is doing just fine, 3) it creates an “elephant in the room” atmosphere between the manager and employee (awkward!), 4) it can tempt the manager to express his or her frustrations with the employee in unhealthy ways (e.g., the silent treatment, the biting, sarcastic comment during staff meeting), and 5) it creates trauma when the silence is finally broken. We pay a big price for silence and it clearly represents a failure in leadership.

Avoid ineffective communication techniques: Generally speaking, we have a pretty “nice” culture in Utah. There are lots of benefits to this (like when I cut a person off on the road the other day and all the person did was smile at me! I LOVE this place!) But there is a communication technique that we use way too much: it is called the “sandwich technique.” That’s where a manager approaches an employee with serious concerns about his or her performance and starts off by giving the employee a whole lot of praise (much of it undeserved). This represents the first slice of bread. The manager then gingerly says, “there’s a tiny little problem I’d like you, um, kinda… sorta… maybe… possibly one day, to try to do better at.” This is the “meat”, but boy, it’s a pretty thin slice! This is followed by the manager anxiously giving the employee a whole bunch more praise (again, probably overstated), which is the other slice of bread in this pathetic little sandwich. The employee walks out of the room thinking, “I’m great! Oh, there’s that one minor little issue, but obviously, it is nothing important.” The manager walks out of the room thinking, “I hope the employee got the hint.” When somebody’s job may ultimately be the line, it’s not fair to hint (nor is it an effective leadership practice). While the manager should always be professional and respectful, if a serious message needs to be sent there shouldn’t be any ambiguity.

When concerns become serious, put them in writing! I was teaching a seminar back east a while back. One of the participants said she was issuing verbal warnings to an employee but to no avail. She finally created a written warning and met with the employee to review it. As they read the warning letter together, the employee’s eyes suddenly got big and she exclaimed, “you mean, you’re going to fire me if I don’t make these improvements?” Bingo! The manager said, “yes, I don’t want to see that happen, but if don’t get your act together, you will lose your job.” Message transmitted. Mission accomplished.

Written warning triggers: Some managers struggle to know when it is time to put concerns in writing. There are some fairly obvious triggers like when an employee commits a major violation of policy or fails to complete an important task. But sometimes such triggers aren’t always present. Here’s a trigger for more nuanced situations: if I feel that were the status quo to continue I would eventually want to terminate the employee, it’s probably time to put it in writing. Otherwise, a manager may get to the point where he or she wants or needs to terminate the employee, but there’s a lack of documentation to support the decision.

Well, that’s it for now, I need to go “be a leader” and write up my kid for not making his bed this morning. Hmmm, should get interesting.

This article should not be construed as legal advice. Copyright ©2014 by Jonathan K. Driggs, Attorney at Law, P.C. All rights reserved. Jonathan K. Driggs is an employment law attorney with over 21 years of experience, including 3 years with the Utah Labor Commission.

Call an HR Attorney as often as you need, for a low, fixed monthly fee! In partnership with Payroll Experts, Jonathan is offering his “HR Legal Compliance Service” to Payroll Experts clients at discounted rates. For a low, fixed monthly fee, you can call Jonathan as often as you need to get answers to your HR legal compliance and employee relations questions. Get rid of the attorney’s ticking clock! For more information, please contact Payroll Experts at (801) 221-3732 and ask about the “HR Legal Compliance Service.”


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