3 Steps to Keep a Bad Employee from Suing You

Guest blog written by Lorrie Howard of Horizon Point Consulting

As the mom of three boys who are full of mischief, I often hear the phrase “I didn’t know” or “you never told me.” And usually it’s in response to something that I had addressed with them at least once. Sometimes I wish I could approach disciplinary issues in parenting the same way I approach disciplinary issues in my career, with a formal sit down discussion and written documentation.

One of my favorite aspects of Human Resources is employee relations. I love the opportunity to speak with managers about the performance management process and the importance of documentation.

Having kept organizations from litigation and winning tough unemployment hearings, here is a three pronged approach to avoiding a lawsuit because of disciplinary issues:

  1. Have a Disciplinary Process or Structure in Place. Having a disciplinary process that is well thought out and is executed in a fair and consistent manner is half the battle.
  2. If your organization doesn’t have the documentation to back up those actions, you still risk losing that battle. Keep these tips in mind for documentation:
  • The documentation can’t just be good, it has to be great.
  • Less isn’t more. I think my all-time favorite was the manager who wrote under expectations on the documentation form “Do your job right the first time.” Needless to say, we had a conversation about how to set expectations and goals, and the importance of documentation.
  • Be detailed in explaining the performance issue or policy violation, be clear in your expectations, and be specific in the goals that the employee must meet moving forward.
  • Make sure the employee understands what the consequences are if they fail to meet those goals.
  • Plan to follow up. The conversation can’t just end there. If you see they’re making some progress, but not enough, recalibrate with them. Praise them for the progress they’ve made, but then tell them how they can bridge the gap to complete success. And document it!
  1. Your disciplinary process needs to be a partnership between HR and your leadership team. Collaborate on how you will address the performance issue with the employee.  HR should emphasize that its job is not to tell managers what to do, but to help guide decisions and to help ensure that the organization is applying its policies effectively, fairly, and consistently.

As a manager, draft your documentation and have HR review it before you present it to the employee, because sometimes you really shouldn’t write what you think! You’d be surprised at some of the things I’ve seen on written documentation. Remember that the employee receives a copy and it could be used for future unemployment or litigation purposes, so keep it professional. Have HR or another member of the leadership team sit in as a witness on the counseling. Never put yourself in a he said, she said situation.

A Performance Improvement Plan or a termination for performance (gross misconduct aside) should never be the first conversation had with an employee. If it is, then your organization is not executing your disciplinary process effectively, fairly, or consistently or does not have an effective disciplinary process in place. And if that is the case, you’re opening yourself up for potential litigation and HR will have a hard time helping your organization justify its actions.

The time spent following a structured disciplinary procedure and ensuring documentation is in order is minimal compared to the potential costs incurred by organizations that fail to do so.

What’s your best advice for avoiding a lawsuit?


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