The following comes from Laurel McClead from Drummond Woodsum. She will be one of the presenters for the Supervisor Day sessions “Hiring and Interview Issues” and “Performance Management”. She will also co-present the “2019 Employment Law Year-in-Review“.
Employment relationships are often quite personal. Employees derive not only income and security but often self-worth from what they do for work. In many cases, employees spend more time with co-workers than their own families. Employers benefit from having happy, productive employees. Turnover is costly and disruptive. Therefore, it is mutually beneficial for employers and employees to have a good work fit and a good working relationship built on trust and communication.
That said, problems can occur. As management-side employment lawyers, we spend a lot of time advising employers on how to address performance and conduct concerns and how to discipline and terminate employees. Depending on the nature and extent of the concerns, sometimes, the employment relationship is salvageable. Sometimes, it isn’t. Either way, we have found that how an employer communicates with employees when addressing difficult situations has a huge impact on the outcome – even when the relationship doesn’t work out.
The foundation for the employment relationship starts even before an employee begins work. Job advertisements, employment applications, and the manner in which job offers are made and accepted are the first communications between employees and employers and are the foundation of the employment relationship. They are also often the first indicators if there is going to be trouble. We cannot stress how often employers overlook “red flags” at this initial stage, whether they be instincts about a particular candidate or a sense that someone just wouldn’t be the right fit for the job because of that individual’s attitude, experience, or skill set. That doesn’t mean employers shouldn’t take a risk on a job candidate that may not be an obvious fit when other factors weigh in favor of giving the employee a shot and the employer has a good feeling about him/her . . . indeed, sometimes those “out of the box” employees turn out to be the best hires. However, employers should be cautious not to rush to fill a position when their instincts are telling them the person isn’t right for the job. Not making a hire is almost always better than making the wrong hire.
From our perspective, when looking to fill positions, there are two important considerations: getting the best candidates possible and legal compliance. When hiring, employers should ensure that hiring materials are compliant with state and federal discrimination laws. Is all requested information (through job applications and interviews alike) free of potentially discriminatory requests?
There are several federal and state laws with which managers must be familiar in connection with the hiring process. These laws prohibit employment discrimination against qualified individuals on several bases, including physical or mental disabilities, age, race, color, religion, sex (including pregnancy), sexual orientation, national origin, and genetic information. Application materials and job interviews must avoid asking questions that touch on these issues. That does not mean, however, that employers cannot ask for information that allows them to obtain the information necessary to evaluate candidates for employment.
Obviously, employers may not inquire about whether an applicant has a disability or about the nature or severity of a disability. However, an employer may inquire about an applicant’s ability to perform specific job-related functions (although medical examinations may not be conducted until after a conditional job offer is made). An employer may not inquire as to an applicant’s age, but it can ask about a candidate’s education, training, and employment history. An employer may not ask about an applicant’s family obligations, but it can ask whether an individual has the capacity to devote the time required by the job (as long as the employer asks all candidates the same questions).
A thoughtful job description will not only have the job title but describe the nature of the position, position requirements, and job expectations, including specific job functions and requisite skills to be successful, required experience and education or training, expectations as to the time required, whether or not travel is required, and the physical demands of the job. If this is done well, there should be no surprise to either party as to selection criteria and what it will take to do the job, and the person hired for the job will be selected based on relevant skills and ability to perform any bona fide job requirements. Well-crafted job descriptions help avoid miscommunications, set up mutual expectations, and minimize potential liability should the relationship break down.
Depending on the job, it is often useful to provide a conditional offer letter to document the applicant’s prospective terms and conditions of employment to the extent that they are not addressed in a contract, collective bargaining agreement, or some other written document. More information is usually better. It is only fair to inform a prospective employee about his/her job title, job duties, starting date, compensation and benefits, required work location, exemption status, and any other conditions that must be met prior to beginning work (e.g., passing a physical examination, supplying proof of licensure or certification, or passing a criminal background or credit history check). To the extent that confidentiality, non-solicitation, or non-compete obligations are expected, savvy employers should place the employee on notice and even provide copies of any such obligations at the time the conditional offer is made. Some states will not enforce these types of obligations if an employer does not provide them to the employee before he/she accepts a job offer. By providing this information, the employer is being transparent, opening communications with the employee, setting expectations, giving the employee the opportunity to voice concerns before the relationship is solidified, and documenting compliance with state/federal law requiring the provision of this information. In some cases, it may result in an employee who shouldn’t take the job walking away before starting – a win for everyone.
Communication during employment is critical. Employees who understand what is expected of them have a better chance of meeting those expectations. Employees who are given notice when things aren’t going well have an opportunity to change their behavior. While many employers assume an employee knows when he/she is not performing up to expectations or understands that he/she is engaging in misconduct, that is not always the case. For a variety of reasons, including inconsistent enforcement of rules or poor communication by supervisors and others, employees are not always aware that there is a problem. Simply put, if an employee doesn’t know there is a problem, they cannot fix it.
All too often, employees who are disciplined or terminated later report (e.g., before an administrative agency or court or before unemployment) that they never understood that their performance was unacceptable and/or that they did not understand what was expected of them. Communicating job expectations and providing warning of performance deficiencies is important, and the burden to ensure this happens has to be on the employer. Employers can do this using a variety of formal and informal tools including: keeping job descriptions up to date, discussing changes to duties or expectations, providing both formal and informal feedback on performance, conducting thoughtful performance evaluations, counseling employees when performance concerns first crop up, and disciplining employees when those concerns continue. These communication efforts will give the employee the best opportunity for success (making it a great investment for the employer). Even when it does not work out, one can hope that the employee will feel as though they were treated fairly and given an opportunity to succeed (even if they don’t like or agree with the decision). In the event that things go poorly despite these efforts, having engaged in them will assist the employer in defending its decisions.
While it is obviously very important to notify employees about and document performance or conduct concerns, employers should also provide positive feedback when appropriate. People like to feel appreciated. Employees are happier and more effective and have higher job satisfaction when they know they are doing a good job and receive accolades for it. Giving credit where credit is due can avoid unnecessary conflict and turnover.
Separating from Employment
There are times when an employment relationship is simply not going to work out. Sometimes it is because of external factors unrelated to the job; sometimes it is due to changing organizational needs; sometimes it is because the job is the wrong fit for the employee (or vice versa); and sometimes it is because of employee conduct or performance. Whatever the reason, voluntary or involuntary, the way the separation is executed can make a huge difference. In cases of voluntary separation, employers should not forget that happy former employees can be a great recruiting and marketing tool. Similarly, former employees who feel that they have been treated poorly or unfairly can cause all sorts of trouble in the form of bad publicity or legal action. Expressing regret over an employee resigning is fine. Expressing bitterness or anger is not. Retaliating against an employee for leaving is never okay. In cases of involuntary termination, employers should expect employees to be upset. However, treating the employee respectfully and fairly throughout the process is not only the right thing to do, but it can help avoid unnecessary conflict or piling on. In our view, employees who feel as though they have been treated fairly are less likely to cause trouble.
Tips and Takeaways From the Trenches
- Communicate, communicate, communicate.
- Inform employees about expectations and concerns in more than one way – not everyone learns the same way.
- Provide employees with specific information so that they have the opportunity to change and improve.
- Document your efforts.
- Always treat employees fairly and with respect.