It’s true at work: No good deed goes unpunished
Thursday, October 03, 2019
Life is full of sayings that can apply to work. Some of them might include: “do unto others as you would have them do unto you,” “turn the other cheek,” “walk the high road,” and “kill them with kindness.” But, unfortunately, this employment lawyer has learned that when it comes to work, one adage always seems to ring true: “No good deed goes unpunished.”
It often seems that the more breaks an employer gives an employee, the more often the employee asks for a loan or pay advance, files a charge of discrimination, or starts a campaign to get a union into the workplace.
Experience shows that employers can be too kind when addressing employee shortcomings. At work, employers simply need to exercise more healthy skepticism.
This healthy skepticism should begin with the documentation the employer generates over the course of an employee’s career. After all, legal cases are typically decided by the evidence (read: documentation), not the facts.
In many situations, employers inadvertently sabotage their own best interests by employing too much kindness. Stated another way, if employers do not communicate truthfully and directly enough when addressing an employee’s performance problems, they hand plaintiff’s lawyers an effective weapon to use in challenging their own credibility.
Be Honest and Don’t Sugarcoat Things.
Clearly, employers should always demonstrate respect for their employees. It is also important to be generous with praise, when appropriate. When criticism or counseling is needed, employers should present the message in a constructive manner.
It is not effective or even respectful, however, when managers sugarcoat or soft-peddle criticism, especially when the sugarcoating dilutes the underlying and intended message. Specifically, employers cannot bury their message with mild or indirect suggestions and expect it to change employee behavior or to help defend subsequent legal claims.
Whether the issue is poor job performance or violation of policies, employers must identify the shortcomings and clearly state what they expect the employee to do. Otherwise, a disgruntled former employee may be able to testify credibly that they were not even aware that the employer expected them to change behavior.
Imagine this example: rather than telling the employee that five recent unscheduled absences were excessive, and that the employee must demonstrate immediate, sustained improvement, the manager described the purpose of the meeting by writing, “Management notes that Ms. Jones has recently been absent from work an unusual number of times. She has an opportunity to improve her attendance.”
When Ms. Jones is subsequently terminated for excessive unscheduled absences, she claims that she had no idea that her attendance was that bad or that her job was in jeopardy. The employer’s documentation could not convincingly refute Jones’ contention.
Defense of employment discrimination and retaliation claims almost always hinges heavily upon performance evaluations and corrective action forms from employee personnel files. Vague comments or those that tip-toe around the issues can devastate the employer’s explanation for deciding to terminate the employment relationship. The Equal Employment Opportunity Commission, state agencies, and plaintiffs’ lawyers aggressively scrutinize and question documentation that is not clearly consistent with the employer’s explanation.
Moreover, the Supreme Court has held that employers cannot obtain summary judgment in cases where they give conflicting explanations for actions. So, the most important rule is to “tell the truth!”
3 Types of Documents are Especially Important
Among others, three types of documents can be critical in cases involving discipline or termination: (1) warning or corrective action notices; (2) employee performance evaluations; and (3) termination notices. While these documents can help win a lawsuit, they can certainly lose a case if not completed effectively.
In every case, employers should ensure that these documents truthfully, clearly and fully convey the relevant facts so that a third party (i.e., a judge or jury) can understand what they are saying. Whenever possible, human resources leadership should be significantly involved in this process.
1. Corrective actions or warning forms will typically form the cornerstone of the employer’s defense. Before presenting them to employees, managers and HR should confer to ensure that the document truthfully and clearly identifies the problem as a shortcoming and describes what the employee is expected to do to correct it. It is beneficial for the employer to add what the employer will do to assist the employee in meeting the conduct or performance standard (such as work-withs, training, etc.).
The employer should also state that “sustained” compliance with its expectations is required for the employee to remain employed. The documentation should state that “repetition of this misconduct, or any other failure to comply with rules of conduct or expectations for performance will result in further disciplinary action, up to and including immediate termination of employment.”
In other words, the employee needs to understand that his or her job is in jeopardy to effect positive change. A good procedure is for managers and HR to ask themselves whether an independent third party would understand the message contained in the document.
2. Performance evaluations should plainly identify an employee’s performance shortcomings and expected improvement to be effective in defending legal claims.
On the other hand, an overly generous performance evaluation, signed by a manager, containing no indication of concerns or less-than-satisfactory performance, can be extremely damaging. Many managers have learned this lesson the hard way through having to answer questions about these understated performance documents under oath in a court proceeding.
3. Termination notices or communications about terminations must accurately and objectively summarize the reason for the decision. In employment litigation, plaintiffs almost always seek to prove that the employer is untrustworthy and that its stated reason for termination is a pretext or cover-up for an improper (discriminatory or retaliatory) reason.
Employers who change their “story” about a termination once it is challenged in a legal forum enable plaintiffs’ lawyers to cast doubt on their “real reason” for the decision, even if the employer was just sloppy or negligent in not properly summarizing the reasons for its action.
In sum, while it is vital for managers to demonstrate respect and to be constructive in leading their employees, this must be done in an effective way that does not increase the employer’s risk of being sued.
Given the natural human tendency to avoid or minimize confrontation, employers should train managers on the importance of involving HR in the process and creating effective documentation, especially corrective action or warning forms, performance evaluations and explanations for terminations. Otherwise, when preparing this type of documentation, soft-selling the issues or being too “kind” can backfire on well-intentioned employers.
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