New York Giants football head coach Pat Shurmur was terminated on “Black Monday” – the day following the end of the regular professional football season that is notorious for terminations. The night before Freddie Kitchens was fired as head coach of the Cleveland Browns. Several days later, the Dallas Cowboys parted ways with its head coach Jason Garrett. None of these decisions to terminate employment were a surprise to anyone, including the coaches. Each of the coaches compiled lackluster records. NFL head coaches understand that winning a lot of football games is a job expectation and losing too many games is a terminable offense.
Terminations Should Not be a Surprise
Outside of sports, however, the criteria used by employers to evaluate job performance is seldom as objective as wins v. losses. Nonetheless, a performance-based termination should never be a surprise to the employee being let go. If properly managed, employees should know what their roles are, what is expected of them, whether they are meeting the employer’s expectations, and what the consequences will be if they fail to meet such expectations.
Properly managing conduct and performance is critical, as it increases the chances of improving performance. Equally Important, it ensures transparency and fairness to employees, which in turn impacts employee morale. Another important benefit of sound management is that it reduces the likelihood of a lawsuit. Fired employees are more likely to accept a termination without claiming a breach of contract or discrimination if they knew the termination was a possibility and believe that they were first given a fair chance to succeed.
Four Key Tips to Proper Management
Here are four (4) essential tips to properly manage conduct and performance in the workplace:
- Conduct honest and fair performance evaluations. As a threshold matter, the supervisor conducting the evaluation needs to have personal knowledge of the employee’s performance. The assessment should be based on facts as opposed to assumptions, rumors, innuendo or emotion. Focus should be placed on whether the employee is performing the requirements of the job, such as quality and quantity of production. The supervisor should evaluate employees in an objective and consistent manner. Subjective characteristics such as an employee’s attitude are important and should be considered, but negative ratings about these characteristics should be supported by evidence showing how the conduct impacted the organization and other team members. An annual evaluation should be based on the entire year. Avoid placing too much weight on recent events or performance. Develop criteria and use it consistently. These measures help protect against claims of favoritism or unlawful bias.
- Communicate Regularly. Like any relationship, good communication is important for a successful employer-employee relationship. The annual performance evaluation should not be the first time an employee hears about positive performance or performance in need of improvement, unless there is new information. Supervisors should communicate with employees about their performance throughout the year. Certainly, if an employee engages in misconduct or is making mistakes, the supervisor should act timely rather than ignoring the issue and hoping it goes away. The NFL coaches who were let go on Black Monday likely knew what their fate was going to be heading into the final week of the season, because the General Manager or Owner likely did not wait until the end of the season to provide feedback.
- Properly Document Conduct and Performance Issues. It is also important that management document its efforts to address any conduct and performance issues. Such documentation can take many forms, including an e-mail to an employee summarizing a counseling meeting, a formal disciplinary warning, or a performance improvement plan, to name a few. Whatever the form, sound documentation should show that the employee was notified about the conduct or performance issue and was provided a reasonable opportunity to improve. From a litigation perspective, an employer should have documentation that supports any discipline imposed, especially a termination. A lawsuit can be won or lost on the existence or absence of documentation about what led to the discipline or termination. Employee files should contain recent performance reviews, records from counseling sessions with the employees, and any discipline or corrective measures taken leading up to the termination.
- Treat Employees with Respect. Sometimes, the “human” component of Human Resources gets lost. Management should always take a moment to appreciate the impact an employee termination decision may have on the employee. Many lawsuits are filed because a former employee feels disrespected by the way they were treated more so than the decision itself. Being terminated is an emotional event. Management should be conscious of comments made to an employee during a termination meeting and respond to requests for information on benefits, unemployment compensation, and other issues that may arise.
Employee misconduct and performance problems are inevitable. How an employer handles them can have serious ramifications to overall company performance, workplace morale, legal exposure, and the bottom line. It is critical, therefore, that supervisors actively manage employees when it comes to conduct and performance. By implementing these tips, employers can go a long way to motivate employees and reduce the risk of litigation. As always, please let me know if I can help.
Kenneth Winkler, a shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.
