HR Solutions


Problem Employees




What are the legal implications of how you manage the problem employee?


Let’s define a “problem employee” as one who demonstrates one or more of the following behaviors:


HR Solutions excludes from this group those who have performance problems - - those who fail to meet your expectations of work results. These can  be dedicated people who nevertheless can’t cut it, or lazy people who will not live up to their potential. In any event, these are not problem employees.


We also leave out those who have a single or a few rule violations, but their conduct is not deliberate, or significant enough to be harmful to their performance or your operation. Someone who is occasionally tardy is no problem employee.


Applying the three C’s to the problem employee situation


Of course the individual who is engaging in gross misconduct, e.g., committing violence on the premises, drinking on his shift, dealing drugs, is a problem employee who is injuring the operation and must be removed from the workplace expeditiously.  The issue here is not whether the person is worth saving but what are the problems legally (if any) when we terminate. And that takes us back to chronicles, consistency and communication.


Chronicles:  Managers must document carefully and sufficiently what led up to the discipline or dismissal and what steps were taken to carry out the actual termination.  THE PAPERWORK SHOULD BE DRAFTED WHILE EVENTS ARE TAKING PLACE IF AT ALL POSSIBLE. Even gross misconduct can lose as a defense at the unemployment board if your paperwork is lousy.  And make sure the employees know what is gross misconduct - - if they are not on notice and have no warning, they can get unemployment benefits.


Consistency:   You fired a black employee for serious safety violations but kept a white person for doing the same thing. 


Communications:  It is unsettling to listen to a manager insist on how out of control an employee is, then listen to the employee in private insist how autocratic and dishonest the manager is. Before moving on an employee for gross misconduct (and to a great extent for some of the other problems in this section), you have to be SOLID about your facts, and that requires deft communications skills, to get the truth.  If the manager keeps giving you evaluative phrases like “he has been a problem ever since he came here” and “everyone knows how unstable she can be under pressure”,  you are not hearing facts. Communication about a problem employee that pivots around such phrases and declarations is no basis for discipline.



· Sprucing up your handbook


Make sure the termination section of your handbook refers to as many reasons for corrective action and dismissal as possible. It is true that the more “stuff” there is in the book, the more time the line manager in charge of the department must spend to educate employees about what is expected of them. But it is better the spend the time now than later, after the person has gotten a lawyer and can make a case that she never knew there was a rule and therefore was not really a problem employee.


We suggest keeping this in perspective at all times: Who is the problem employee? The manager or the subordinate?


Where the former is presumed to be flawless, the problem may extend upward in the organization. Therefore the key to identifying and attempting rehabilitation of the problem employee is a two-part standard:


1.   the organization, from the top-down, believes in basic fairness in the management of people, and


2.   the organization appreciates that a problem manager has to be corrected first, before steps are taken to rehabilitate the problem subordinate.



In going through the other sections of this folder, keep in mind that a jury, a judge or a government agency cannot impose liability on the employer who treats a problem employee on a legitimate basis, consistent with policy and procedure, and consistent with other cases involving the same situation.












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