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Employee and Managerial Performance Management

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Employee and Managerial Performance Management

Employers usually do not expect to receive demand letters or litigation notices from their former employees. Generally this occurs because of a lack of communication and understanding as to the employee’s performance. In this webinar, we will cover some fundamentals to avoid common performance management mistakes.

Transcript

- Hello, everyone, and welcome to Performance Management. My name is Alka Ramchandani-Raj. I'm a shareholder at Littler Mendelson, also co-chair of our occupational safety and health practice group. I work in our Walnut Creek office, and there, you could see some of my contact information. If you have any questions after this program or if you would like to contact me for any other issue, please feel free to do so. So, a little bit about me. I provide advice and counsel in all aspects of employment, including discrimination, harassment, and wage and hour, as well as right now retaliation's a big issue, dealing with overlapping issues between OSHA and employment law. My specialty is in representing employers in compliance, inspections, investigations, and enforcement actions involving OSHA. But I have a very broad practice. I conduct manager based safety training and compliance counseling, and I represent employers in discrimination and whistleblower cases and federal and state wage and hour cases as well. So, a little bit about what we're gonna talk about, and we're gonna talk about employment law fundamentals. We're gonna talk about performance management. We're gonna talk about common performance management problems and their impact in the workplace. And we're gonna talk a little bit about annual performance evaluations during today's session. So, let's get started. Employment law fundamentals. So, employment generally in the United States is at will employment, unless you're part of a union, in which case some of that may change. But employment generally is at will, which means you can fire or an employee can quit for good reason, bad reason, or for no reason at all. The alternative, when things are not at will, is that you have to have good cause or just cause. The good reason, bad reason, or no reason must not be unlawful. So, your employment decisions must be defensible. As an employment law attorney, a lot of the time, what I tell my clients is, think of it if you were on the stand and you were testifying in front of a jury. Do you have a good reason, something that is not unlawful, to terminate this person? And if you do, do you have the documentation to back it? We're gonna talk a little bit about documentation, but really, that's the way you should think about at will employment as well. You know, is there anything in here that may seem to be unlawful? And we're gonna talk a little bit about protected categories, things that employers should not do, during today's discussion. The bottom line is you must always be able to articulate a true, legitimate, non-discriminatory business reason for your employment decisions and be able to prove them. A lot of the time, what we see with the decisions is sometimes the decision is related to some kind of protected activity that the employee is involved in. You know, they, it may not seem like it's really a good faith protected activity, but it's related. And so, a lot of the cases that we see have that interrelation, interrelating issue. And sometimes that poses to make litigation a little bit more high stakes. So, the stakes are high generally in litigation anyway. 2,000 employment related claims are filed on an average workday. And so much of this is based on lack of communication. We see a lot of demand letters coming in, especially post pandemic. There's a lot of miscommunication with people working at home or a lot of speculation or assumptions that are based because people are working at home. And of course, with the exposure to the safety aspects with the pandemic, we've definitely seen a big boost in that as well, that a lot of the time, employees may complain about a safety aspect and then they get terminated, and all of a sudden, they think they're a whistleblower. So, we definitely think that the stakes are extraordinarily high right now, coming to the end of the pandemic with employees returning back to work, lots of different issues on the horizon for employment law in general. So, what is unlawful discrimination? It's when employment decisions are taken based on a protected category and the impact the individual terms and conditions of the employment. So, it impacts their pay, it impacts if they get a write up, it impacts if they're hired, 'cause discrimination doesn't only need to happen to people that are already employees, but can happen to applicants. It can result in firing. It can result in a change in benefits. It can result in leaves where the employee's not getting any pay. Anything that really impacts the individual's terms and conditions. They get passed up for a promotion. All of these different things can be determined to be impacting the individual's terms and conditions of employment. What is a protected category? And that is really a loaded question. So, in the federal context, these are all the different types of protected categories that are there, citizen status, age, gender, sex, pregnancy, race, ancestry, color, religion, national origin, disability, genetic predisposition, and veteran status. So, these are all significant attributes to each one of our employees. And so many of our employees fall into one of these categories. So, it's very easy for an employee to say, it's because of my age. I'm over 40, and 40 is the age limit. You would think now that, I mean I'm over 40, and I don't consider myself, you know, part of the elderly class at all, but the federal standard is anytime over 40 years of age, or I'm a female, or I just had a baby, or you know, I'm East Indian, it's about my race. So, many of these, many people fall into these categories. Sometimes employees fall into multiple of these categories. A disability, for instance, especially post-COVID, you know, we do see some people saying, "Well, I'm disabled. I have long COVID." And that is still a question that is not quite litigated, but we could see some more disability claims coming down the pipeline relating to that. So, it's very important for employers to kind of look at this, take it into context, and try to figure out where their employees generally fit on the scope. Now, some states have some additional protected categories. For instance, even some cities may have some extra protected categories. For instance, in San Francisco, obesity is considered a protected category in the city. So, you definitely need to do your due diligence depending on where you're located, where your employee's located, to find out if there's other protected categories that are there. And here you could see there's some state and local things here too. Marital status is a big one. Sexual orientation and gender identity and expression. We've definitely seen this in many states, California, Oregon, Washington, New York. They do focus on these other elements as well. So, what does the law really require? Well, you can't harass someone, can't discriminate someone. You have to provide reasonable accommodations if somebody has a disability or if they've got a religious reason to require a disability. You can't retaliate against someone. I'm sure many of you on the call have seen, or attending this, have seen policies and procedures, like your no harassment policy, your no discrimination policy, other EEO policies that your employer or you may have implemented in your process. So, one thing that a lot of employers don't necessarily have is retaliation policies, but it's very necessary to have retaliation policies. And just a tidbit, since I'm an OSHA nerd, but you know, sometimes OSHA regulations and standards require no retaliation policies within this, within your safety policies as well. So, it's not a bad idea when you've got multiple policies that you put something that says, the employee will not be retaliated for bringing forward, you know, safety information, or the employee's not gonna be retaliated against for complaining about harassment, right? So, it's really important to have that. Now, we all know that sometimes we just get that employee who complains about harassment in general. It happens. It doesn't happen all the time, but it does happen that you'll get an employee who says, "I've been harassed in my workplace," and it's really just not a good faith claim. And the individual kind of spins out. He's had bad performance issues, and then we terminate him. A lot of the time, there's this overlapping issue because of the timing, that the harassment complaint or the discrimination complaint comes in right before the person is terminated, and it turns into a retaliation complaint. But generally, you know, keep these words in mind. Keep words, no harassment, no discrimination, no retaliation, and where reasonable accommodations are needed. So, decisions where denying equal employment opportunities can get employers into trouble. So, it's very important to realize that every decision relating to employment can result in a claim of discrimination. Thus, before you make any decision, it's really important that managers scrutinize every decision they make to ensure that there's no discriminatory impact. You do have to be careful when making those type of big decisions. However, when you are taking any employment action, you have to ensure your decision does not violate any applicable anti-discrimination law. There's always a risk no matter how you cut it, just sometimes the decisions you make have higher risk than less risk. And the way you kind of analyze this is by going through and seeing what the situation is. So you know, you figure out, what exactly are you doing? You're hiring the person, are you terminating the person? Are there layoffs? Is there discipline involved with this? Is it a demotion of some sort? Are there transfers or promotions involved with this? Is it an assignment? Is it training? Can it limit the person's invitations to miss, to meetings? Is it about a reasonable request for accommodation? These are all different things where we can see employers are making decisions about that may have some kind of negative consequence. So, let's talk about employment discrimination. There needs to be a legitimate non-discriminatory reason that you are taking the action that you are. The reason our defense in these cases are, we have a legitimate non-discriminatory reason, because under a prima facie case for discrimination, it's pretty easy. The person complained about something or they fall within a protected category, which as I mentioned, most everyone falls within a protected category, and they suffer some kind of adverse employment action. Generally, their meeting majority of the prima facie case right there. And then the defense that the employer has is to show that they have a legitimate non-discriminatory reason for terminating the person. There can be company liability attributed for any manager's behavior, and it's really important that we show fairness. So, you can't treat one employee differently than other employees. If you're gonna accommodate one individual for a disability, you must accommodate the other individual for the same disability. So, you have to look at all these factors as you're making the decision to terminate, to hire, to fire, to allow people to attend different types of meetings, pretty much anything that may impact the workplace. A big issue we have seen recently is with vaccinations. Lots of employers right now were requiring the COVID vaccination. In fact, right now, a lot of employers are still requiring the COVID vaccination for employees to come into the workplace. The interesting thing about the vaccination itself is that they said, you know, if the employer can show that there's a direct threat of safety that's involved with, and it's a bit of a, you know, it's a bit of a hurdle to show it, depending on the surge and the geography that you're in. But if the employer can show that there is a direct threat of safety in these situations, the employer can say, yes, you know, we're gonna mandate these vaccines and we're gonna exclude people from the vaccines. Where some employers may be having a little bit of an issue is they may include some people and they may not include some people. And in those cases, they're creating a disparate impact between individuals on the same basis of what the issue is. So, employers have to be very, very careful. What is their history of allowing people? What is their history of accommodating people? And if that is changing for this specific person, or it changes depending on the manager that's making the decision, the company can become liable for those type of issues. So, performance management. So now, we're really getting into the bulk of, how does this whole thing tie together? Well, performance management, if you do proper performance management, it allows you to be able to defend those claims because it means you have counseled someone, you've educated them, there's gonna be dialogue between you and that person. 99% of discrimination claims, retaliation claims, comes because of the lack of communication from the managers and other individuals at the company with that employee. Don't get me wrong, sometimes you just get a rogue employee or you just get an employee who refuses to listen. We've all gone down that road. But a lot of the time, you get an employee who becomes disgruntled for various different reasons because they haven't been communicated to, and performance management, that communication regarding their performance can change that scope and can minimize the number of claims you will receive. So, that's why performance management is so important. So, results from effective performance management. What is really in it? You know, what's in it for you? Well, you know, with good performance management, employee morale is up, they feel heard. There's more job satisfaction. For those employees that are really trying, often with good performance management, they become better. It improves employee production and job performance because we've got people that are striving because they understand what they're doing wrong. And for those employees that really wanna work, they're gonna work to do better. It lowers turnover. You've got great employees, and you don't need to search for new ones and train them because you are training the ones that you currently have and addressing your concerns about their performance. And generally, there's a lot fewer roadblocks to separation when it becomes apparent that performance management isn't working. So, corrective action is a big part of performance management. If you tell employees what they're doing wrong, they will often try to change that behavior because you would think that employees are working, want to continue working, they're working because they need their paycheck or they like their job and they want to continue doing it. So, a majority of employees, if they're communicated to in a manner that they are able to understand it and they are able to determine exactly what's being asked of them, they will often strive to change and improve. So, morale of all employees increase, because all coworkers believe everyone's holding up their end of the bargain. If you've got one bad employee that isn't really doing what they're supposed to and everybody else is picking up the slack for that bad employee, the morale's not gonna be there. And we've all seen that in the workplace as well. So by performance managing that one employee, by taking the right corrective action, by telling them what they're doing wrong and giving them stringent timelines to get better, you are basically pushing that employee who's not working as well up and allowing everybody else to rely on that other employee to function better as a unit. Employees need to know what standards are required for them to do their best. What's expected of them? And sometimes corrective action helps them understand that. So, that's why corrective action is so important. It is probably one of the hardest things that managers have to do, and a lot of the time, managers need to be taught how to take corrective action. Often, we end up promoting managers in the course of their jobs. And one thing that we don't do is actually teach them about performance and how to document performance, and why is it necessary? It's really important that we train our managers on all these different aspects. They should understand the pitfalls of employment discrimination, those protected categories, how they could get into trouble for retaliation and whistleblower claims. They should also be taught, this is how you issue corrective action. This is when you issue corrective action. And so, really having trainings for managers on how to manage is really, really imperative to try to minimize the pitfalls that employers can fall into. So, common reasons for avoiding performance management, why managers are reluctant to discipline. Well, if they don't really like the individual or the individual is confrontational or somewhat argumentative or just difficult, aggressive in some ways, managers may want to avoid it, right? Nobody really, well, most people I should say, not, some people don't mind it, but most people don't like to avoid conflict. They don't like heightened conflict. And sometimes, as a manager, you're putting yourself in a bad situation by having to have this difficult conversation with someone and saying, "You're not doing a great job," right? Nobody ever wants to say it, and nobody ever wants to hear it. So, managers will try to avoid that, that uncomfortable conversation. Sometimes, they will just look the other way and say, "Oh, you know, this just happened once, so it's probably not gonna happen again." But you know what? The second time something happens, it could be worse, right? Think about it from a safety perspective. And usually, I like examples from safety for this reason, because one small safety mistake the first time can alert the supervisor that the person's doing something wrong. Even if that person did it wrong once, the second time, it could lead to an injury, or worse, it could lead to a fatality. So managers often think, "Oh, well this was just a mishap. It's not gonna happen again. So I'm just not gonna talk to him because I don't think it's gonna be worthwhile." The truth is, you should always talk to them. Why? Because you're opening that door of communication, you could stop that fatality or that incident from happening. You also are starting a trend of communication with that individual to make sure that they're correcting their behavior. The third thing is that it takes time and effort for managers to actually take out their time to talk to their employees. And a lot of the time, our managers are already stretched, right? They're already managing other people. They've got their own quotas that they've gotta make. They've got their own jobs with all their different functions. For all of those of us that are managers in some form or another, we know becoming a manager just means your workload has doubled, right? So, managers already have a lot on their plate, and it takes time and effort to stick in performance management. A lot of managers don't really consider that as a core function of their job. They think they've got all these other tasks, and performance management just slips in every once in a while. But the truth is performance management is a continual job of managers. It has to be a daily job of managers. So, why are all these reasons just not sufficient? Well, it could make things worse. We talked about, you know, the safety issues. It could happen again. And really, it's the manager's duty to manage. It's what makes them a manager. And if you think about all these other type of situations, retaliation, harassment, discrimination, that is a big part of it, right? Like, let's say you've got an employee that comes to a manager and says, "This other guy said something harassing to me." Then it's a manager's job to manage that issue as well. It's their duty to manage that issue as well, right? They have to manage everything, and performance is exactly that same thing. It should be managed in that same light. So, correcting conduct as a manager, the first rule is no one should be surprised when they're fired. If an employee is surprised when they're fired, a manager really has not done their job. Sometimes this happens when an employee does something really egregious and you just fire them for that one conduct. But generally, if you have trained that employee not to try to do that, or if it's something that's so outside of the scope of their job, that employee should still not be surprised. But if you're performance managing, you've already given that employee several different chances to improve. They already know where they haven't been improving, and because of that, they're not gonna be surprised. Now, if employees are not surprised, it lowers your legal risk of those other type of claims that you could receive because the employee knows in the back of their head, "Oh, they've been complaining about my performance for the last three months. They gave me three months to make it better. I haven't made it better." Right? They think it's more fair because they know they've been communicated to. So really, the number one rule is, if you communicate with employees in a way that they won't be surprised when they're fired, chances are you have less of a risk of actually getting one of those other type of litigation cases. The sun never sets on performance management, right? It starts the minute the employee starts their job, and it's active, ongoing discussions until they're terminated. You have an employee who's been doing this for 25 years. You think they know the ins and the outs of everything, doesn't mean you can stop performance managing them or coaching them. There is always another step that that person can take, and there's always that chance that they can backtrack. So, performance management is definitely an ongoing issue. At all times, a manager should be performance managing, and that's what makes management so difficult. So let's look at this video.

- I understand, and I'm not making excuses, but I simply don't have that information in front of me, but I'll get it for you right now. Is it okay if I follow up with you within 30 minutes? Will do. My apologies, but I promise I'll get this taken care of. Okay. Why is such a challenge? This is ridiculous. He's always late. He's creating problems with client wait time, which is creating a lack of confidence in our service and me. But I know he's been here 15 years and his file shows his record is spotless. I don't wanna handle this, but I will have to do something. Good morning, Tristan.

- Good morning.

- Do you mind if I see you in my office for a quick conversation?

- Sure.

- So here you can say that she is thinking, what should she do? This individual has clearly created an issue. She's thinking about it. She's taking him into a private center to try to talk to him about the issue. And that is a great start. You know, she's thought about it, she sees him come, she says, "Let's go talk." Now, what's the first thing that she should really be doing? Well, she needs to identify and describe the issue that's there when she's communicating with him. So, what does that mean? It means execution, conduct, work rules and legal, right? She's going to have that conversation with him. She's gonna identify and describe the issue. She's gonna tell him what conduct that he did that was wrong. She's gonna talk to him about the work rules that they think are an issue and she's gonna think about those legal consequences that may be associated with her discussion with him.

- This is the fifth time you've been late to work this month.

- That's impossible.

- No it's not. I've been here and I've seen what time you come in.

- No offense, but I've working here for 15 years, and no one's ever had a problem with me.

- That's great, Tristan, but I need you here when you're supposed to be unless you arrange it with me ahead of time.

- Fine. Is that it?

- Yes, that's it.

- So, as you can see here, she had that first conversation with him where she got the phone call, she saw the issues, she told him, "Let's go talk about it." She raises these different issues. She talks about exactly what we said, the execution, the conduct, what her expectations are, and what the work rules are and the legal consequences. She kind of thinks about the legal consequences. And then here she is again talking to him again and saying, "You were late again." Even though he is a 15 year employee and he has got nothing else in his record, she's not doubting herself by trying to performance management manage him to make him better. So, what do we really have in the manager's toolbox to help with this? Right? Because it's great having that difficult conversation with them. But there are things that we have to be able to get our employees at a different level. So, a lot of the things that we have are things like training, coaching, being creative, you know, trying to do some kind of problem solving. We have the ability to discuss corrective actions, and that setting may be different depending if you are a union based company or if you have at will employees. But a lot of the time, employers also have progressive discipline, where you know, the first thing is a verbal warning or a verbal notice to the employee, then it's written warning, then it's really your last chance and a suspension. This is sometimes called the progressive discipline process if it has to go in that order. And you also have the opportunity to terminate people. And it's true that, you know, you may get that one employee who does something really wrong and you wanna terminate that person to make sure that other employees also understand where that scope is. So, and not to create a precedent that you're going to overlook certain activities, right? So, there's a lot of stuff in the manager's toolbox. There's group exercises. Sometimes you can go and get external exercises, especially if you're part of a company that's willing to engage extra with that employee. So for instance, extra training resources that are external or getting someone some additional help, some extra programming or some extra software that might help them get more organized. All these different things can be in a manager's toolbox depending on where they're working to try to help the individual. Now, a critical thing that happens a lot of the time during these discussions, and managers have to be a little careful about it from a legal standpoint. That is when managers are using these things or they're coaching or they're performance managing, they may actually be privy to information that all of a sudden alerts that manager that the individual has a protected, falls within a protected category, like a disability. So, it's very important that managers are also trained on what to do the minute that employee says, "Oh, I have dyslexia," or "Oh, I've got a child at home that's sick." Things like that need to be vetted differently because then we start going into questions of, does this individual need a reasonable accommodation? So, managers not only have to be trained on understanding the tools that they have to be able to correct the person's activity, but they also need to be taught about key words, about when to escalate things to human resources, or you know, when is the tipping point? And what is required? So, if a disability is disclosed or if a religious accommodation is disclosed, the manager should know what they need to do, depending on what your company's outlook is like. Really food for thought, it's a big issue that a lot of employers don't look at. It's a common pitfall that, in the course of this, the manager will be educated about something and the minute the manager's educated about it, the company generally is thought to understand and be aware of the disability and it can create a pitfall into that and the other legal consequences. So, it's really important to remember these things. So, it's really important to tailor your approach of coaching or correction, right? When you're coaching, you're talking about a performance issue. You're asking questions. It's an engaging process. You're trying to be supportive. You're actively listening to what the person is saying. You're working together with them trying to create solutions. A good idea of coaching is, you know, sitting there and giving that person extra training, talking to them, asking them what are some of the issues that they're having and coming up with the game plan of how to make it easier for them. Corrective action is really correcting inappropriate conduct. It is really getting the employee to recognize their faults. It's verifying information for next steps. "This is what I expect you, and there specific consequences for failure to meet those expectations." So, one of the examples kind of that falls a little bit in both categories but kind of indicates where we're talking about coaching versus corrective action can be like a personal improvement plan, which is a very common trending factor when you want your employee to correct some performance issues. Part of a performance improvement plan will definitely be considered coaching, at least in most situations it will, because in a performance improvement plan, usually an employer should include something saying, "Okay, we will meet on a weekly basis and talk about what you have to do. You can ask questions from me specifically with regards to what the task entails and if you need some help understanding what our expectations are from each one of those tasks. And you know, during that conversation, we will talk about the task that you did the previous week, and I will be there to, for you to ask questions, so we can determine, you know, is this making more sense to you? And you know, is this a pathway for you to become more successful at the task at hand?" The same way a personal improvement plan may be a corrective action, because it's kind of like a last chance document saying, "I'm expecting you to improve on A, B, C, and D in the next three months. Or if you fail to improve on A, B, C, and D, then you know, we will probably terminate your employment." So a performance improvement plan can be both, and you know, it's kind of your last hurrah at trying to coach the person to become better, to provide them the support that they need to try to become better. But it's also a corrective action to identify those issues. And it's a great way to document something if you are thinking about terminating someone. The problem that we see a lot of the time with employers is they end up waiting until the last minute to make that decision. So, they haven't issued a performance improvement plan. They haven't really done a performance review, let's say, in 11 months. And in those situations, the last performance review, the person actually did pretty well. They may have had verbal discussions with the person in the meanwhile saying, "Oh you did this wrong, you did that wrong." All of a sudden the person does something that, you know, again is consistent with some of the verbal discussions and they're like, "You know what? I want to terminate them now." Well, sometimes then that question is, do you have the documentation to show you have a legitimate business reason for terminating them? Because a lot of the time, the question isn't, do you have a legitimate business reason? You may, and you may be able to articulate that in front of a jury, but the question really is, do you have the documentation for it? You know, I always tell my clients, I was like, you wanna be thinking or sitting on that stand and you've got that document right up there being displayed to the jury and the jury should be able to read that document and say, "I understand why you terminated this individual." And if you have that document that says it, you're in a much better place of defending that claim. So, I always tell my clients to think of it that way. So, what are some factors of what you need to evaluate when you're talking about performance management? You have to think about job duties, work histories, performance records. You know, what's the seriousness of the violation? Some violations are much more severe than others. How often does this happen? And are there any other mitigating circumstances that are here? You definitely need to take all of these things into consideration to make a determination of what corrective action is necessary. You know, you have an assistant, for instance, that fails to properly take notes, and you got their notes the first time, and you couldn't decipher what really happened during the conversation. You know, you disciplined the individual. You try once more, and it's a little better, but it's not quite up to par. Well, maybe you're an upward trajectory, right? So, then you continue to performance manage that person. As long as they're making continuous strides, you're in an upward trajectory. Now let's say, you've got that same assistant, and the first day the notes are horrible. You talked to her about it. The second day, the notes are still horrible. You talked to 'em about it the third time, they're completely incomplete. It's kind of the same performance issue, it's dealing with notes, and you're building up that frequency at that point, and you're building up that file there that, if that is an essential function of their job, that's definitely something that you would sit there and say, "Okay, this is an essential function of your job. You either learn how to do it or you're probably gonna get terminated." And that's where PIPs and other type of performance evaluations can be very helpful. You know, what is not a good factor? Brad's a good guy, and I'll tell you that sometimes even I struggle with this with my performance review and I, when I do performance reviews, it takes me a long time because I really sit there and have to think, what am I trying to say for, you know, the employees that work for me? And a lot of the time I wanna say, "Oh, I really like him." Is that really relevant for performance eval? No. There's a lot of people that are really great guys, right? They're fun to work with, they fit the culture, that's great. But the truth is it doesn't really have to do with their performance. People can be good people, but they may not be good performers. So, it's important to kind of think, what is really relevant? A lot of the time in our performance evaluations, we'll sit there and say, "I really like working with this person." Again, you may really like working with the person, but it's not saying if they're a good performer or not, because you may really like working with a lot of people. A better way to probably phrase it is, that person really contributes to the team and they make it a lot easier for everyone to work together. They bond well and they create a good cohesive group of individuals and they're successful when they're working together, right? It's a very different way of kind of phrasing it and saying, "Everybody likes him." Everybody likes him 'cause he is a good contributor. He's able to do his job well. He makes a team more cohesive. They're more successful. So, think about how you're doing performance management and you're doing performance reviews. Very important. Now, let's say you have an issue with someone. How do you document it? What is the prime type of documentation you should have to really avoid those legal pitfalls that may be coming down the pipeline? So, why is documentation important? Well, it allows you to organize what you're thinking, right? It avoids those things of he's a great guy to understanding why he's a great guy, right? What is he doing to make people feel he's great? If you're doing a performance review or you're managing someone or giving them corrective action, it kind of provides you with an outline or a script of, what are the issues you really wanna talk about? It allows the employee to understand what has happened and what exactly they need to do to correct what has happened. It prevents confusion later down the pipeline. And again, as I said, it stands up in court. Juries love these type of documents if it has all of the elements it needs. If you have poor documentation, it's not going to, it may help you remember what the issue is, but it may not help the employee. Keep in mind, if you are doing a verbal discussion with the employee, employees often don't retain that information as much as if they get it in writing, right? So, having that information in writing in front of the employee, I mean that's exactly why we have verbal warning and then we have a written warning, not only because it goes into the file, but it's because employees generally retain that information more when they get written up. So, having and giving the employee something in writing, even if you are doing a verbal warning, if you have some documentation like a memo to file to give to the employee to say, "Hey, you know, I'm talking to you about this. It's not really going in your permanent file. I'm just kind of creating and documenting some notes verbally. Here's the things I want you to do. Here's the things I want you to think about." That written information to the employee is going to help them understand exactly what they're expected to do. Having that meeting with them gives the employee the opportunity to ask questions, and all of those things, giving the written step by step or a certain list of things that meet your expectation and allowing the employee to ask questions about that, the combination of those two is very, very pervasive during hearings, so think of it, or during a trial. So, think of it that way. Poor documentation's not gonna help you. Good documentation's gonna help you. So, when you're describing performance, I recommend using this method, the FOSA method. I'm a fan of the 49ers and I think about Bosa whenever I think about this, but it's FOSA. So facts, list only facts, opinion, not opinions, rumors or hearsay. You wanna be very factual based. You did X wrong, period. You wanna be objective, not subjective, when you're doing this, right? Subjectivity when you're dealing with performance management is very, a very bad thing. You wanna be as objective as possible. These are the company's standards. This is where you're not meeting the company's standards. You want to provide solutions or you want them to talk to you about how they think they're going to be able to improve their performance. You wanna have that dialogue. And finally, you wanna talk about what action needs to take place to ensure there's an improved performance, which may not mean that they're gonna go from zero to a hundred in a second, but in the next month, I wanna be able to see you do one through four correctly. You know, within six months, the expectation is you're gonna be able to do one through eight correctly, right? So exactly what do you, what is your expectation? That's really what you're emphasizing. So, effective documentation will basically answer all the W questions, right? Who, what happened, where, when, you've gotta be specific and direct, and you've gotta give examples whenever they're applicable. So for instance, with our note taking situation, you can tell the secretary, we had a call with Josh on the phone. During that call, Josh had indicated seven things that he wanted us to complete. We had the call in my office. It was on October 13th, and you were directed to take notes. When I asked you about the notes after the meeting, you provided me with a list, but the list was incomplete and it only talked about three of the elements instead of all seven elements that Josh wanted us to do. Our expectation is you take effective notes while we're on these calls, which means that you definitely want to write down whatever the expectations are as delivered by Josh. That is kind of the way you wanna deliver your effective documentation. Be very specific about it. So, what do you not include? No hearsay, gossip, rumors. Well, Sally said you took notes and the notes were incomplete, therefore I'm writing you up because your notes must have been incomplete, and you know, I think they were probably incomplete because your mom had fallen the day before and broken her leg. Yeah, a lot of irrelevant stuff there that you don't wanna include, right? We were talking about medical issues. We're talking about irrelevant history. We're talking about what Sally said, rather than actual facts of what happened. We're drawing the conclusion that they were incomplete without saying why they were incomplete. That's a bad example, you know, of what documentation should look like. So, what's wrong with this? Darren has become very uncooperative lately. Several times he has questioned my decisions and the decisions of the organization, implying bad faith. I have spoken to Darren before, but to no avail. This time, I warned Darren that if he has a problem with one of my decisions, he must bring it to my attention in a professional manner. Unprofessional outbursts will no longer be accepted. Well, this is very vague, right? How has he become uncooperative lately? That's conclusive and not very informative. Several times, he's questioned my bad decisions, my decisions and decisions of the organizations, implying bad faith. Well, what did he do? What decisions did he question? And why is it bad faith? We're going over those W questions. I've spoken to Darren before. When? When did you speak with Darren before? This time, I warned Darren that if he has a problem with one of my decisions, he must bring it to my attention in a professional manner. Well, what does that mean? For unprofessional outbursts will no longer be accepted. Okay. What is categorized as a professional outburst? If Darren is just loud, that may not be an unprofessional outburst. He's just loud, right? So, you need to describe with some particular . So here's all the things that are missing, right? Dates of the incident, date of the memorandum, list of specific examples, subjective terms. There's no signatures that Darren even received the memo, the names of the people involved. It's very broad. Which policy was violated, if any? I mean, this unprofessional conduct. Is it a company policy? What will happen if the behavior continues? Okay, he's supposed to come to you, but if he doesn't come to you, what's gonna be the result? What is the purpose of this memo? Right? So you really want to, when you're drafting these things, you really wanna think about these factors as you're drafting it. It's going to help that jury when they're looking at the document and say, "I understand what happened on this day. I know what day it happened. I know what was communicated to him. I understand what the manager's expectations were from him. And okay, let's see what happens next. Did he meet those expectations? I also understand where their concerns are because that's what the company policy says. And if he violates that again, we know what's gonna happen." So, documenting misconduct and poor performance. Here's what really happened. You set up new procedures for the team about how to submit articles for publication based on a new company media relation policy. Darren sent out an email on June 1st to several coworkers saying that the procedures were bull S-H exclamation mark at sign. I mean, that he was not going to follow them until ordered to do so. Found a copy of the email on your chair on June 2nd, probably left by a coworker who was sick of Darren's complaining. You checked with IT, and the email did come from Darren. Okay? So this is what you did. Now, here's the real memo. This warning, you could see Darren's name. It says who it's from. It says the date, written warning and the date of the incident. This written warning is based on the following. I received a copy of an email which I verified that you sent to several colleagues on June 1st, 2021. You could even say in there, which it's not in here. I verified with IT, so that everybody remembers where you went. This memo used profanity and stated you were not going to follow the new procedure on submitting articles for publication that I'd reviewed with you and the staff on June 1st. The email increases the likelihood that others will not follow policy, offends other employees and negatively impacts morale. I've already discussed with you the needs to address concerns in a professional and productive manner. Now, you can see that this is it. Now, if Darren had already violated the policy, you could say that, you know, I've received this copy, but I've already also seen that you are refusing to follow, refusing to follow the policy, and you would discipline them in addition to relating to that. Now, here it goes a little bit further. In the future, you will bring any questions and concerns about new policies to me or another appropriate company manager. These concerns must be presented professionally, without profanity, with the goal of solving the problem. You will not communicate your displeasure with procedures with coworkers by using profanity, nor will you tell coworkers you will disregard the rules. Right? Against company policy. Please be aware that the next incident like this will result in discipline up to and including transfer, suspension or termination. And there is lines for the signature. Examples of good and bad documentation. Bad. You're not a team player, right? What's a good example? Everyone on the clerical staff is expected to order supplies. Darren complaints every time he is asked. Last quarter, Darren ordered supplies once, while everyone else ordered supplies four times. That is good documentation versus bad documentation. It actually talks about what we're really talking about. Not our image. As a receptionist, Sue is in a public contact position. On four occasions, with the dates, she has been verbally counseled not to work on her nails at the front desk, not to chew her gum while working, and not to color her hair blue. She's not displaying our image, which doesn't say what it is, versus specific facts as to what happened with the dates and who the person is and why it's an issue. Doesn't fit in well. Brandon is rough when his coworkers approach him with questions. As a consequence, they try to avoid talking with him and the team loses the benefit of his knowledge and experience. Very specific again. It's exactly what the issue is. So, what's step three? Step three is a meeting with the employee. And we've kind of talked a little bit about this, but you wanna use SMART management, you wanna be specific. What are you getting and what you expect? You want it to be measurable. Again, going back to objectifying your observations. You want it to be actionable. What the employee can do to improve. You wanna be reasonable. Don't expect perfection overnight, right? Unless it's something that can be manageable overnight, and you want it to be timely. Start early and check in often. This is a great example of, you know, when you're talking about a PIP, what you would wanna do is go over all these different aspects, and your PIP, in some ways, should go over these aspects. So let's look at, what is SMART management?

- Thanks for coming.

- Of course. Hope I'm not in trouble.

- No, no, but I do wanna let you know how you're doing and how you can improve.

- Okay.

- Specifically, I'd like to talk to you about how many calls you are escalating.

- I don't escalate more than anyone else.

- Actually, you do. Last month, you escalated almost 25% of your calls. A key measure of performance is keeping that number below 10%. And that same standard applies to everyone who has completed training.

- What? Do you want me to start making stuff up? Lie to them? Sometimes I just don't know what to do.

- And that's okay. We don't expect you to resolve every issue alone, which is why we have an escalation process. I just wanna see what we can do to make you more self-sufficient. Any ideas?

- I don't know.

- How about this? We can send you to refresher training on Tuesday to make sure you're comfortable with the new offerings. And you can spend Wednesday shadowing one of our more experienced agents. Thursday, I'll set up a meeting with the escalation manager, so she can explain what kinds of issues they expect to receive. How does that sound?

- Okay.

- If you do have to escalate something, it's okay, but I want you to follow up with the escalations manager to see how it was handled, so you'll be better prepared to troubleshoot similar issues in the future, okay?

- Yeah.

- All right, let's meet again at the end of the month. I want you to shoot for 20% or less for the rest of the month, but I'll also be checking in to see what kind of escalations you had and make sure you followed up with them. Sound reasonable?

- Yeah, definitely.

- Hey, if it's going well, I'm sure we can get you below 10% from there on out.

- And that's a great example, right? Like he's talked about all of those issues under SMART, given him measurable statistics, talked about actions, talk about timing, all these different elements that are really critical. So, post discussion, something you wanna do is also document this. Record the employee's reactions. How did they say they reacted to it? Document the conversation. What occurred? What were you doing? Giving them a written warning, talking about the PIP? Distribute the documents to the HR personnel file, so you have a record of it, because you never know when something's gonna turn into litigation. Really important to follow up. Very critical steps. If it's going well and you see improvement, you praise the person. If it's going badly, you'll reassess. Take more serious action, say they're not improving, and you know, talk about next steps. Now, we've little, talked a little bit about a PIP. I'm gonna go over this a little quickly. There is no one size fit all for the length of a PIP. And it really should be tailored to the performance or conduct that's an issue. And you know, you should be keeping in mind similar situations from the past. If you're providing a different amount of time and what the legitimate business reasons were that you were terminating the person. You need to include that improvement must occur immediately and be maintained, right? It's not just a fix it and then forget about it. And the failure to immediately perform as set forth in the PIP may result in further disciplinary action, including up to termination 'cause really, your PIP is your last step, right? A lot of employers, they drop the PIP and then they extend it out and they don't do anything about it. You have to be very particular about your timing of the PIP to show you're enforcing it. It's an enforcement mechanism. So, dropping the timeline, not going back, not having those conversations, you not following up what you're promising to do in the PIP, because the promise goes both ways with a PIP. It's what the employee's promising to do and it's what the employer's promising to do. So, not going back and doing it makes it less effective. It's not always needed, but it is a good way to formalize documentation, and it's really important to be consistent. Some common questions. Can't they just force them to resign? Can I just convince them? You know, there is a thing called constructive termination that an employee can claim any time that they're terminated. So, that's something to kind of keep in mind. Just because they quit doesn't mean their claims end. So, common performance management problems and their legal impact. You know, here are some examples. I'm not really gonna go over 'em on too much detail. If you have discrepancies between your performance management and the later claims of performance, it's not consistent. You know, here's two cases where we see issues. In these two cases, there was no documentation of performance issues. And so, a lot of these, you will see that, you know, we're gonna be denied motions for summary judgment. There's not enough documentation that's there that can overcome a disputed fact. And keep in mind, litigation's extremely expensive. So, if you have the documentation, sometimes you can overcome a case at the summary judgment stage. And if you have sufficient documentation, a lot of the time, you can't. Of course, this needs to be evaluated on a case by case basis, but having that documentation sometimes can really minimize that cost associated with litigation. A common other problem is failure to follow established procedures. So, in this situation, the female employee argued gender discrimination, which is a protected class, when passed over promotions. The employee failed to give performance evaluations for nine out of 10 years that she was employed, but promoted male employees, and there was a lot who did receive evaluation. So, there's clear discrepancy, and it was an 800,000 jury verdict in favor of the female employee. Now, recently, especially in some states, like California, there are some really, really large jury verdicts. And so, that's really a big threat for employers. This is why performance evaluations as well as performance management's so critical. So, I'm gonna quickly, really quickly, go over annual performance evaluations. It's important to give real time feedback, right? Give, giving positive feedback on work done well throughout the year, that's important too. Day to day performance and conduct issues need to be raised throughout the year as they arise. Counseling and corrective action should be discussed. Now, in your performance evaluations, you may wanna bring up a lot of the same stuff, but if you're documenting this stuff as it's going through the year, your performance evaluation's gonna be a lot more accurate. The goal is no surprises at review time, right? All of a sudden, the employee thinks they've been doing everything right, they get a performance eval, and it's a two out of five. They're gonna be wondering, what happened? I was never told I'd done anything wrong. You know, you wanna be confrontation averse. If you're telling them that you need them to work on it through the year, it's because you want them to be successful. Come review time, the performance review is accurate. So, what's really critical about performance reviews? You want them to be honest. You want to prepare. You want it to be accurate, and it should be focused. Nobody's perfect. It should say the good and the bad. It doesn't need to be all bad. Examples are great, because it will let the employee know exactly what they did wrong. And time and effort by a manager is really critical on these. Performance reviews almost always come up in these protected class cases, either for retaliation, harassment, or discrimination or whistleblower claims. So, putting in the time beforehand can really help prevent other things coming down the pipeline. A manager should always have a folder or documentation about the good things employees did, the bad things employees did, emails related to those issues, corrective action forms. Think about it as an employee. You know, when you got praised in an email, how many of you guys actually like stored that email in your email box? Like, I used to do it whenever I got a good email, you know, right? For the rainy day, I always kind of kept it there. So, employees are doing the same thing, right? They get a positive email, they're storing it there. You know what they're not storing? The negative emails, which is why it's so important for the manager to keep those folders, because at the end of the day, if the manager, if you're only sending over the positive comments, you're not sending over the negative comments, email's gonna be saving all the positive comments, the employee is, and all of a sudden, you're gonna have a case that's just totally one sided to the employee because there's all these positive comments there. You have to keep your fair records. In sum, based on everything we've kind of talked today, manage before the problems begin, right? Talk about your expectations, get feedback. Have that open communication and dialogue with the employee. Document the performance, the good, the bad, and the ugly. It should all be written out in some form or another. Does everything that you think about necessarily have to go to the employee? No, but there should be a memo to file. There should be information there. So, even if you're verbally counseling them, you should have a memo that said, "I verbally counseled them on this day." Even if you're not performing that, you're not producing that document to the employee or giving it to the employee. Give the bad news now to avoid a serious problem later. Don't wait until the performance review. Oh, you know, performance reviews are in three months. I'll bring it up then. No. Bring it up now, because in the next three months, that employee may really deescalate, you know, whatever they're doing. And the problem is you may wanna terminate that employee before the performance review even comes up. So, start documenting now, and termination should never come to a surprise. Again, following these different things is always going to reduce your risk of litigation. It's always gonna reduce those discrimination, harassment and retaliation costs. It's always going to be able for you to formulate that defense of a legitimate business reason for terminating the employee. So, keep that in mind as you're going along. Again, I'm sure you guys may have questions after today's presentation. My name and number is in, as was my contact information, is in one of the first slides. Please feel free to contact me, and I really thank you for listening to me today, and it's been a pleasure talking to you about performance management. Thank you.

- All right. That was perfect.

Presenter(s)

AR
Alka Ramchandani-Raj
Shareholder and Co-Chair, Workplace Safety & Health (OSHA/MSHA) Practice Group
Littler Mendelson P.C.

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