june2021 - 14

THE LABOR LAW ADVISOR
Problem Employees -
Develop or Dismiss?
NOT UNTIL THE last several years, while intermittently dealing with an acute lack of available
applicants to fill job vacancies, have employers begun to more frequently struggle
with the decision of whether to discharge a poor-performing or problem employee or
give the employee yet another chance. While always a distressing event, while there
was an continuous stream of job-seekers applying, and the knowledge that employees
were employed at will - the relevant concerns about terminating an employee did not
include serious ramifications on operational capacity.
However, by early 2020, shortly
before the Coronavirus shattered
our world, the unemployment rate
had fallen to about 4%, its lowest
point in 50 years. Employers in
almost every industry were seeking to
retain current employees and attract
new employees through a variety of
measures. More employees were
voluntarily leaving to jump to another
job than at any time since 2001.
The COVID-19 pandemic turned
the job market upside down. The
mandatory closure of many businesses
forced millions of people out
of work. Unemployment rose to over
14% nationally and higher in some
markets. While it has fallen to around
6% as businesses rebound, millions
remain unemployed. Despite this,
many employers are still reporting
difficulty in finding new hires. As
the economy continues its recovery,
competition for workers will intensify,
exacerbating the hiring problem.
Replacing employees, no matter
the reason for their departure,
is costly and
time-consuming.
In addition to the direct costs of
recruiting, hiring, and training of new
employees, there are the indirect and
hidden costs of lost productivity and
diminished employee morale among
the remaining, overworked employees
who may question whether they too
should be seeking other employment.
While employers may not
be able to prevent the departure
of an employee seeking another
opportunity, employers can prevent
unnecessary or hasty terminations.
Discharging someone who is underperforming
or has violated work rules
may seem to be necessary. However,
given today's highly litigious environment,
even a routine discharge generates
risk. No employer action has a
greater likelihood to precipitate legal
scrutiny than firing an employee.
The number of workplace laws
and regulations protecting employees
from unfair or arbitrary termination,
and the number of federal and state
agencies that enforce them has never
been larger. Employment related legal
actions are among the most, if not the
most, frequently filed today. Whether
they are administrative charges filed
with workplace enforcement agencies
or lawsuits filed in the courts, they
can be costly to defend even when
the employer's actions were perfectly
lawful.
There are circumstances where
the dismissal of an employee is the
only viable option. Threatening or
harassing conduct, violence, theft,
serious or continual insubordination,
and similar serious misconduct cannot
be tolerated. Yet in many cases
the situation is not one of flagrant
or serious misconduct. Attendance
issues are the single largest cause for
employee terminations. Given the
14 JUNE 2021 ■ www.CPAPracticeAdvisor.com
legal risk and the costs of replacing
someone in a tight labor market,
perhaps a better alternative in some
cases, would be to rehabilitate the
problem employee. Helping employees
through performance or conduct
issues to become productive members
of the team could prove much more
rewarding and certainly more costeffective
than summarily ushering
them out the door.
Unfortunately, there is typically
no speedy or simple process for
developing a problem employee into
a model participant in the workforce.
It requires the time and careful attention
of someone close to the issues,
usually the employee's immediate
supervisor or a competent and conscientious
lead person. Whoever acts
in this role should have an intimate
knowledge of the job and how it
should properly be performed. This
person should also be in a position
to observe and promptly correct any
conduct issues that may persist. In
addition to the personal coaching and
guidance needed, the supervisor/lead
person should also be prepared to use
progressive discipline if necessary.
When properly used, progressive
discipline can help correct unacceptable
performance or behavior. At
each stage of the discipline process,
the conversation with the employee
should be equal to the level of discipline.
Too often this type of critical
RICHARD D. ALANIZ
Labor Law Attorney, Principal
Alaniz Law and Associates, PLLC
ralaniz@alaniz-schraeder.com
discussion does not occur.
Employers attempting to salvage a
problem employee also sometimes fail
to take advantage of other available
processes to address performance
issues. One recommended step used
by numerous employers is a Performance
Improvement Plan (PIP). This
should be considered any time an
employee is struggling. Employers can
implement PIPs for a wide range of
reasonable time periods and include
whatever benchmarks the employer
deems appropriate to track and measure
the employee's progress.
The PIP should provide the
employee the information needed
to understand his/her performance
deficiencies, the performance goals,
and the actions necessary to meet
the
performance and
behavior
goals. In the unlikely event that the
personalized coaching and PIP are
unsuccessful in achieving the desired
progress, and termination is looming,
the employer may want to consider
a " last chance agreement. " This can
be for whatever length of time and
can include any benchmarks that the
employer feels are suitable.
The understanding is that any
continued unacceptable performance
or behavior will automatically result
in immediate dismissal. Ultimately,
the goal is to avoid losing an employee
who, if given the opportunity (or even
opportunities) and needed guidance,
can become a productive team
member, helping to contribute to the
success of the business. ■

http://www.CPAPracticeAdvisor.com

june2021

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