It is easy to feel helpless when dealing with a poor performing employee. Even where there is good cause to terminate, the employment laws give ample opportunity for a disgruntled employee to sue the company. I often find that my clients will tolerate a poor performer and delay the termination decision for too long, fearing that taking any action at all will trigger a lawsuit. In these cases, there is a strategy that harkens back to Monty Hall and the difficult choices contestants made on “Let’s Make a Deal.” We call it the “Door Talk.”
Termination Risk Factors
Of course, some terminations are more risky than others. Termination decisions are made the most difficult where the employee has one or more of the following risk factors, which make any termination decision much more complicated:
- Long-term employee who has worked for the company for many years
- Little or no documentation in the file (or only good evaluations)
- Health Issues – Family Medical Leave, on-the-job injuries, and/or absenteeism problems
- The employee is a “pot stirrer,” frequently complaining about company practices or management
- The employee is a member of a protected class, such as race, national origin, gender, disability or other protection.
The Dripping Faucet – The Problem of Waiting for the Employee to Fail
Faced with the risks of termination, it can be tempting to take no action and tolerate the problem employee for an extended period of time. Unfortunately, tolerating poor performance is often not sustainable. Eventually, the frustration level can increase, sometimes suddenly, justifying a termination decision that seems rash. It doesn’t look right when “the last straw” finally triggers the employer’s decision, especially when many greater missteps in the past were poorly documented or ignored entirely.
Sometimes, the employer will simply wait for some future instance that may be sufficiently bad to justify termination. Of course, the longer an employee works for the company, the more it will appear to an outsider that the employee’s performance must have been satisfactory over the years. The longer the employer waits, the bigger the error or violation needed to justify termination of the seasoned employee.
“The Door Talk”
When dealing with a tough termination, a powerful technique is to give the employee the control over whether or not he or she continues as an employee. The conversation with the employee starts with a clear statement that: a) the employee is not meeting standards; b) you really want the employee to succeed; c) you need the employee’s commitment to success:
“You’ve been here a long time. For many years, your performance has not met our expectations. We really want you here and we are hopeful that you also want to succeed here. If you are committed to success, then so are we. Here are the standards we are expecting from you going forward.”
The expectations you are placing on the employee should be realistic, achievable, and not unlike the expectations you place on similarly situated employees. You’ve got to mean it, and sell the employee on your desire that they rise to the challenge. The issues you are discussing with the employee should be documented to the extent possible, even if the documentation is created specifically for this particular conversation.
Now, here comes the “Door Talk” part of the conversation:
“On the other hand, if you are not committed to success, or you are not happy here, then as Door #2, let’s work together on a transition to a job that you would prefer to be doing. We are hopeful you don’t want to go this route, but if you do, we would like to offer you severance to help you transition to another position.”
The “Door Talk” gives the employee an escape route in a moment where they are faced with the dire challenge of improving their performance at risk of being terminated. In some cases, where the employee’s heart really isn’t in it, the Door Talk allows the parties talk about a severance strategy.
If the employee elects “Door #2” and would like to transition out of the company, it is critical that the employee sign an attorney-prepared severance agreement. The agreement would include a release of claims, and deal with a variety of issues such as letters of reference, payment of severance, restrictions on what the employee can do or say post-employment, and a variety of other matters.
Our office is happy to assist with difficult terminations. We frequently prepare severance agreements, letters of reference, termination letters and other documentation to assist in the termination process and the reduction of potential exposure to our clients. Please call our office should you need assistance in making or documenting the termination decision.