Will it Hold Up in a Court of Law?

Mar 29, 2023 | Legal Info, Performance Management, Small Business

Ending up in a court of law is always my worst-case scenario as an HR professional because I have seen and experienced so much in my career. Why? That’s a bit extreme you may be thinking. But to me, it’s the mindset I wish leaders would have when they are thinking about writing an employee up at the eleventh hour, without any prior coaching. Or when they want to give their employee a bad performance evaluation and have not had one conversation with the employee one time during the performance cycle.

Unfortunately, it’s not their mindset and I have found that some managers want to do what they want to do when they want to do it. However, I have been successful when partnering with managers on performance management issues to help them understand the importance of adhering to policy. Yes, there were missed opportunities to properly manage the employee’s performance, but you didn’t, so now unfortunately, we can’t jump to step 5 without going through steps 1-4. But this is a learning opportunity, so I ask you, maybe even implore you to trust us to help you get through this.

HR is here to not only provide support to employees, but you as a people leader. So, before you grab that corrective counseling form or that performance improvement plan document, consider the questions below that I often ask my managers. Your HR may ask very similar questions, but nonetheless, be as prepared as possible to answer their questions. And if you don’t have an HR person, 1) let’s chat, and 2) please really consider these questions and the level of risk that you could potentially be taking on if you don’t.

1.What is the concern? The answer should not include anything about the employee refusing to go to any social gatherings with the team. Employees are not obligated to participate in social gatherings at work. Some employees just don’t want to engage in social gatherings because they just want to go to work, do their job, and go home. And that is ok. Some employees are introverts and really don’t like being in crowds. Should they make themselves feel uncomfortable for others? No, and if you force them, then we will have another issue on our hands. Also, have you considered that maybe social gatherings go against their religious beliefs?

What I am looking for are performance- or behavior-based concerns. Are they meeting deadlines? Have they received complaints from customers? Have they been showing up to scheduled meetings? Do they have an attendance issue (in which I have an entirely separate set of questions to determine if there is a medical/health concern)? Are they meeting their performance goals?

2. How long has this been going on? I cannot support leaders writing an employee up if the performance concerns have just started. While yes it should be addressed, writing them up is a bit presumptuous. What does your policy say about progressive disciplinary/corrective action process? Wait, do you have a policy about that? (If not, again let’s chat!)

While it is strongly encouraged that HR is brought in sooner rather than later, if the act is not egregious or horrific, we are not going to be on board with you skipping steps of the corrective action process. And please note that all situations are different so we cannot give you a specific time frame because other factors can be at play. However, what I can say is that you should partner with HR!

So, for right now, put that corrective counseling form away, it’s not time for it yet.

3. Have you discussed your concerns with the employee? If the employee has no idea that you have concerns with their performance, then there is no way that they should be written up or receive a bad performance evaluation. You have not given them the opportunity for course correction. It’s not fair, and it’s not right. Have conversations with your employee and if you do not know how to do that, partner with HR for guidance. You do not have to do this alone. 

4. Is there documentation of these conversations? This is the tricky part because the documentation does not have to be formal. You can send emails to follow up with the employee after the conversations summarizing what had been discussed. That can be evidence that the employee was aware that you had concerns about their performance and that you were addressing them. Also, and this will work as well, keep a Word document with the dates, and times of the conversations, and notes on what was discussed. If the issue(s) continues, now you can bring out that corrective action form or that performance improvement plan to complete and deliver to the employee. Whatever you decide to do, just please DOCUMENT! DOCUMENT! DOCUMENT!

And with all of this, if you have not had a conversation with your employee and there is no documentation, how can you want to give them a bad performance evaluation? Yes, you are fed up, but imagine what your HR team is feeling because you chose not to bring them in early on to help you navigate this situation. We are here to help you and guide you because at the day’s end, if an EEOC charge is delivered to the business, we are going to have to deal with it along with our organizational/external legal representative. And then with all of that, countless hours will be spent on looking over everything, trying to determine if we can win, helping to possibly prepare a statement of position or prepare for mediation, etc.

So, to my wonderful managers, my wonderful people leaders, we are three months into a new year, and maybe a new performance cycle for your business. Either way, it goes, if you are seeing some performance concerns with any of your employees, please don’t wait to speak to them. Again, if you don’t know what to do, meet with your HR Team immediately because again you don’t have to go at this alone! We are here for you!

Thank you so much for your time today! I will be speaking with you later. But in the meantime, Stay FINE!

Your favorite Chief HR Concierge!