Question: When you have these conversations with an employee, should you have another manager or supervisor present?
Mike: I’ve had issues where individuals stated they didn’t know certain things after it had been explained to them. Certainly, if you are going to be threatening disciplinary action, suspension, or termination, you need to have another supervisor or manager available who can attest to what was said in the meeting. If you're having a first-time meeting with the employee, give a verbal warning to improve their performance. But you want to document what was said in each situation. If this particular employee continually says, 'I didn't understand that', then you tell them, ‘sit right there', and you write out what was said. Have him or her sign it, so you solve that problem without him or her coming back and saying 'I didn't understand.' If they’re not comfortable doing that, and you're not either, then yes, go ahead and have another supervisor available; but, it's not necessary all the time.
Question: How can you determine the right amount of proper training?
Mike: That is going to depend upon the task they’re performing and the quality of the work you're putting out; there are some assessments you can use to determine whether somebody has the knowledge, skills and abilities to do what they’re supposed to be doing. You've got the benchmarks that have been set by other employees in that job and people you’ve considered to be successful incumbents in that position that you can measure this other person with; and, if they are below that performance level, then it may be that you need additional training. Once you give him or her that training, and they’re still not improving, then it's them. And at that point you have a difficult decision to make whether they are going to continue to work for you.
Question: What can an HR director do with a supervisor who hands in performance reviews with all perfect scores, even though you know the employee is not a perfect employee?
Mike: Well, one of the things I have always complained about is supervisors that do poor performance evaluations — that should show up on their performance evaluation. If you're not doing the performance evaluation of that supervisor, then you need to go to that supervisor's manager and explain to them that this employee is not doing what they're supposed to be doing. It's obvious they're just filling out forms and making a mockery of the process. Then, tell that manager that the person's use of the performance evaluation should show up on their performance evaluation as well. There has to be consequences for not doing the process appropriately. And you’ll have to work with your management team and determine what those appropriate processes are, and what those consequences are.
Question: Do you recommend that employees do self-evaluations each year?
Mike: I have always been a fan of self-evaluations; some of the employees who have to fill them out hate them because they know that their supervisor isn’t going to listen or pay attention to them. If you're one of those supervisors, then having that employee fill out the form is meaningless, and they shouldn’t do it. I always liked it with my employees, because I found that it was a conversation starter. I found something out from them that I was not aware of, and it really helped me reevaluate what I was doing. You also can discover whether somebody has an inflated opinion of themselves and you know you need to work on bringing them down to reality, but it’s a good idea and it works well as a conversation starter for that evaluation. Remember, these need to become conversations, so use something to get them started.
Question: Do you recommend using a separation agreement with each termination or just a termination letter?
Mike: That’s one of those situations where it just depends. If you’ve got somebody with a lot of non-disclosure agreements, somebody who has the potential for impacting your organization, or you feel that they are going to potentially threaten your organization with a lawsuit, then certainly a separation agreement where they promise not to do that in return for a severance is a good thing to do. In other cases where you don't fear that, a termination letter is appropriate. Sometimes you have a good employee who’s leaving for a better opportunity and they’re not threatening the organization. In that particular case, why raise the issue that we may have discriminated the issue in 22 different laws? So don't bring that up, but if you feel that somebody has that potential to sue you, then you certainly want to get him or her to sign a terms of separation agreement.
Question: When there are attendance policy violations do you recommend suspending before termination, or does that defeat the purpose?
Mike: Again, that's one of those that depend. You’ll have to do a read on the particular individual. In some cases, it’s appropriate to go straight to termination. In other cases, if you feel that the person is not really awakened to things, then, in that particular case, you may want to do a suspension. But suspending somebody else, somebody who doesn’t want to be at work, is just giving him or her another vacation; so, if that’s the way you feel about them, then that suspension may not be appropriate.
Question: We are small, fewer than 10 employees and we have issues where we tend to layoff to avoid the hassles of termination procedures. How risky is that from a legal standpoint?
Mike: Well, it’s indeed risky. The term “layoff” comes from a lot union activity that implies that there’s a potential call back, or an opportunity to get their job back. If you’re not providing that, then don't use the term “layoff.” If you're terminating somebody, be honest with him or her as to why you are terminating him or her. Going into the hassle of the termination procedure, depending on the procedure you have, doesn’t have to be that complicated. By saying that your terminating an employee because of their poor performance, you need to have documentation. Unemployment will say you laid him or her off, but the former employee will say they were fired. The unemployment office comes back to you saying the employee was laid off, while you say they were terminated. You’re already caught in a lie, so why do you want to start lying to the government when, in reality, you’re letting these people go? So be honest with them. You're going to be better for it, they’re going to be better for it, and quit using that term “layoff”, when indeed there’s no opportunity for them to come back to work.
Question: If an employee disagrees with a candid assessment with management examples and requests to include a counter statement of explanation, is this acceptable?
Mike: It’s a company procedure that I've seen work for some companies and not work for other companies. I personally don't. If you set it up correctly and allow him or her access or there’s room on your form for them to make a comment, then I would allow them to make that comment. And if indeed they are bringing up matters in their explanation that aren’t verified by the documentation that you had in preparation for that assessment, then you might need to rethink your assessment; maybe they are bringing up stuff that is cogent to the argument that they shouldn’t have been evaluated by. If they want to write that everybody is a jerk and nobody likes me, and they’re doing the conspiracy stuff, at least you allowed them the opportunity to make that comment. It might make them feel better; but, in reality, it has no basis or bearing on the actual performance review you give them.