It is never good to put off dealing with a problem employee. Whether it is misconduct, poor performance, or simply an attitude that impairs your team’s ability to work together well, the time to act is now. Waiting to act puts your organization at risk that the employee will engage in some sort of protected conduct that could “immunize” them from discipline. Claims of retaliation are growing every day and are particularly problematic because an employee who has an invalid underlying complaint plus a retaliation claim can still actually win the retaliation part of the case while losing on the underlying complaint.
The list of protected conduct grows every time there is a new employment statute or regulation; here are just a few examples of the types of conduct that are protected: making a harassment or discrimination complaint; bringing a demand for unpaid overtime; taking FMLA leave; filing a workers’ compensation claim; etc. The list is almost endless. Of course, you may still need to discipline the employee shortly following the protected conduct, but be ready to prove why you chose to act now and not weeks or months earlier when you learned about the problems.
Troubles At Unionized And Non-Unionized Companies Alike
Failing to promptly deal with a problem employee creates additional risk when the employee is a supervisor or lead person. In addition to the risks of retaliation claims by the employee as described above, an employer can be guilty of an unfair labor practice when it fires an unpopular supervisor or lead person – whether you are a unionized company or not – thanks to a recent decision by the National Labor Relations Board (NLRB). In ImageFIRST vs. Food Service Joint Board, the NLRB held for the first time that if it believes that you fired an unpopular supervisor with no recent misconduct in order to discourage union activity, that would be unfair labor practice—even if the firing took place before a union filed a petition for an election. While the NLRB would have no power to order you to rehire the supervisor, it could make an official finding that you committed an unfair labor practice (ULP), leading to other problems for your organization.
The bottom line is that virtually all employers are at risk of union organizing activity at any time, and failing to deal with problem supervisors immediately puts you at risk. The risk is a real Catch-22: the bad supervisor alienates employees who then reach out to a union; when the company then terminates the supervisor, the union files a ULP against the company for firing an unpopular supervisor in order discourage union activity.
How can top management effectively find out how supervisors are doing and therefore be able to deal with those who are ineffective, incompetent, or misbehaving? In addition to personal observations of supervisors, there are various metrics that can be helpful: for example, turnover rate, high performer resignation rate, absence rate, or promotions actioned are all possible data points to examine. The use of employee survey responses can also be helpful. One often overlooked tool is the skip-level meeting. Here are a series of Frequently Asked Questions about this valuable management process.