Council, Baradel, Kosmerl & Nolan, P. A. - Attorneys at Law serving Maryland and Anne-Arundel County

COUNCIL, BARADEL, KOSMERL & NOLAN'S
TIPS FOR DEALING WITH THE DIFFICULT EMPLOYEE (AND ATTEMPTING TO AVOID SUCCESSFUL LAWSUITS AT THE SAME TIME)

BE PROACTIVE - PLAN FOR THE WORST
1. Assume that the employee will sue or file a claim
2. Anticipate how the situation will look to an administrative agency, a judge or a jury
3. Expect that every piece of paper you generate will see its way to the employee's attorney's office
DON'T HIRE THE DIFFICULT EMPLOYEE IN THE FIRST PLACE
1. Thoroughly evaluate and screen each applicant for employment
  1. Obtain references
  2. Check references thoroughly
  3. Perform background investigations
DON'T LET THE EMPLOYEE GET AWAY WITH IT - LAY THE GROUNDWORK FOR TERMINATION EARLY - LET THE EMPLOYEE KNOW WHAT THE PROBLEM IS
1. Provide timely, honest and factually accurate performance evaluations on a regular basis
  1. Don't "pussy-foot around"
  2. Provide constructive criticism
  3. Alert employees to performance issues
2. Investigate and document personnel problems in a timely manner
3. Tell employees when performance is not up to par or when work place behavior is inappropriate
  1. Some employees are dense and just don't get it
4. Put concerns and remedial recommendations in writing to the employee
  1. Ask the employee to sign the notice
  2. Keep copies of all such documentation in employee's personnel file
5. Use progressive discipline when appropriate
6. Do not include inflammatory accusations, epithets, or exaggerations in evaluations and memoranda
  1. Keep it factual and do not say what you cannot back up
CONDUCT INVESTIGATIONS THOROUGHLY, OBJECTIVELY AND DISCREETLY
1. Maintain confidentiality to extent feasible and reasonable
2. Weigh credibility of witnesses and reliability of other evidence
BE CONSISTENT IN ADMINISTERING PERSONNEL POLICIES AND METING OUT DISCIPLINE
1. Treat similarly situated employees in a similar manner
  1. Do not bend the rules for one employee but not another
2. Document why a particular situation is treated differently
BE DISCREET IN DEALING WITH EMPLOYEE DISCIPLINE
1. Establish procedures to keep the reasons for discipline or termination as confidential as possible
2. Minimize and carefully control the document flow generated by disciplinary action or discharge
3. Be sensitive to and protect the employee's dignity and privacy
4. Arrange for the discipline or discharge to take place at an appropriate time and place
  1. E.g., in a private office where the discussion will not be overheard by others
TERMINATE THE EMPLOYEE WHEN NECESSARY FOR EFFICIENT AND EFFECTIVE BUSINESS OPERATIONS (BUT DO NOT OUTRAGE THE JURY)
1. Let the "punishment" fit the "crime"
  1. Exhaust other reasonable discipline and corrective measures first
2. Do not unduly delay taking appropriate action when the employee must be discharged
  1. Delay suggests that employee's performance or conduct was tolerable
3. Determine that the termination does not violate employee rights
  1. Employment contract
  2. Union contract
  3. Company employee handbook or personnel policies
  4. EEO laws
4. Look for "red flags" of potential liability
  1. Is employee a member of a protected class?
  2. Will employee be replaced by someone out of the protected class?
  3. Has employee complained about harassment, discrimination or safety?
  4. Has employee filed a workers compensation claim recently?
  5. Has employee attempted to organize other employees regarding terms and conditions of employment?
  6. Are there any health or disability related issues involved?
5. Consider issues of fairness
  1. Length of employee's service with the company
  2. Was employee recruited from another good job?
  3. Was the employee treated fairly?
  4. Was the employee treated similarly to other employees?
6. Have all terminations reviewed by company's attorney and/or human resources personnel first
CONDUCT THE TERMINATION MEETING IN A COURTEOUS BUT CONTROLLED MANNER (AND DO NOT OUTRAGE THE JURY)
1. Plan the agenda of the meeting
2. Have the termination meeting attended by two company representatives
3. Tell the employee, orally and in writing, why he or she is being terminated
  1. Be direct and to the point (i) Watered down or extremely lengthy explanations lose their punch
  2. Tell the truth
  3. Do not fabricate or exaggerate reasons for termination
4. Listen to, but don't argue with, the employee
5. Provide employee with termination letter
  1. Have employee sign employer's copy to acknowledge receipt
  2. Choose wording of letter with care
6. Protect employer documents and property
  1. Oversee employee departure from premises
  2. Search employee property only if there is an express policy permitting it, the employer reasonably believes that the employee may have employer property, and employee consents to search
    1. Do not use any force to effect search
    2. Ask yourself "Is the property worth being sued over?" and "How sure am I that the employee is stealing my property?"
7. Do not become involved in any physical contact with the employee
GIVE THE FINAL PAYCHECK AND BENEFITS IN A TIMELY MANNER
1. Don't hold back without written authorization from the employee or court order
2. Give COBRA and other required notices in a timely manner
3. Arrange for continuation of benefits
PROVIDE REFERENCES TO PROSPECTIVE EMPLOYERS WITH CARE
1. Insist on written request from the employee or prospective employer
  1. If request is from prospective employer, obtain written consent from employee
2. Provide response in writing
  1. Provide only information requested
3. Provide accurate and factual information
  1. Avoid opinions unless accompanied by facts

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This article is not intended to provide legal advice, but rather to provide information concerning recent developments in the field of employment law. Questions regarding individual situations or problems should be discussed with legal counsel.