Managing Your Problem Employee It’s been estimated that the average manager must cope with at least one problem employee a month. That’s a staggering and sad figure. But there are tools and strategies available to help you effectively maneuver during times of stress. Remember that there are employees with problems—and those are common and often minor nuisances that even the best employees may have- and problem employees- people who are chronically, habitually causing problems in terms of their performance, attitude, hostility or menacing behavior. In general, we advise against any written communication regarding at risk employees except in rare cases approved by legal counsel. Those cases typically involve the need to articulate specific warnings that may need to be shared with co-workers, supervisors or former supervisors, even a spouse or partner. This obligation on the employer can range from what the courts have termed "duty to care" to "duty to warn"- and both actions should be exercised only after a comprehensive evaluation of the problem employee- and his or her ability and likelihood to cause harm- has been evaluated by the threat assessment team of the employer. If one does not exist, we can assist in such an evaluation and help you prepare a strategy for managing the problem employee out of your organization. Communicating About A Problem Employee Once an employee has been identified as constituting a genuine threat to others, the choice of individual or group briefings takes on special significance depending on the kind of threat being reviewed. These general considerations should be kept in mind as a framework for consideration: • Individual briefings are time consuming, especially in large companies or manufacturing situations. In cases involving a pending threat, there may not be time for such communication. On other hand, such briefings may yield specific insight, additional knowledge or information that helps the management team gain additional evidence regarding the individual. • Meeting with individual employees could yield conflicting information and advise being given to employees. Since it is rare that one person conducts all such briefings, it is very possible that some giving briefings may be dismissive or appear to be "going through the motions" while others take considerable care in reviewing all pertinent details. •Such meetings are complex because the questions raised by employees may not have been fully anticipated by the threat assessment team, and it is not only possible, but likely, that different individuals will provide different answers to essentially the same questions. These questions may include: how serious is this? What should I tell my spouse or children? Do I need to get a weapon? Will I be allowed to bring a weapon into work? Can I take a few days off from work with pay since I’m emotionally sick over this? Why aren’t you telling the people in the other work group, or the other shift? These questions—all of them potentially valid- make the individual briefings complex and challenging. •Group briefings may have different opportunities and challenges. First, like those for individuals, they should be choreographed and rehearsed carefully with the assistance of legal counsel in terms of what can be said and not shared. Second, only those with a need to know, or at risk, should be invited. A rule of confidentiality should be aired, or shown on an overhead projector, reminding people that company information, including that to be shared, is confidential if considered so under appropriate laws. They should be reminded about the desire for confidentiality that they would want exercised if the meeting were about them. Third, they should be advised to keep all questions until the end so that all relevant information can be shared. •Can an employees name be shared with the group? What value is there in saying "We have an employee on this shift who is threatening suicide and maybe you’ve heard something about that." Can specific reference be made if the employee has signed their name to a threat? All of these issues must be discussed with legal counsel prior to a group briefing. • In-group meetings especially, we advise that two external parties be invited to participate and speak: law enforcement and professional counselors. Law enforcement adds validity and a degree of seriousness to a discussion that is critical: this isn’t just management "covering its butt" with a briefing, it’s the police that are here to advise that this situation is serious. Similarly, a professional counselor trained in stress management or threat assessment can advise how people typically respond when a co-worker is at risk, and provide a phone number for counseling sessions or telephone advice as needed. Many companies will sign a blanket order to provide a certain number of capped hours of phone or in-office counseling for employees who work under such stressful situations. What Should You Do When You Have A Problem Employee? Identifying and managing a problem employee is one of the most complex, time consuming and important obligations you have as an employer. We can help you frame some of the considerations you face when such difficult circumstances occur. Some managers choose not to act when a critical situation occurs. This can be a serious mistake despite the best of intentions and the best of excuses. Some of the more common reasons include: •Fear of reprisal from the problem employee; fear of physical harm •Fear that they will earn a reputation as being "tough" and unforgiving to employees experiencing difficult periods in their lives •Fear that having this case "on my watch" could harm their own professional advancement • Not knowing whether the case could lead to litigation; many managers dislike the notion of having to later testify or give a deposition regarding cases involving personnel matters •The manager may be a friend or even a family member of the problem employee When a management team probes for these obstacles and rationalizes the need to act to a supervisor, it’s time for a plan of action to emerge. The Plan of Action The following questions are suggested as the first framework for managing a case. They will help provide insight as to where the team wants, and needs, to go. 1. Is the objective to conduct a legitimate fact finding on the case, or has a decision already been made that the employee must be separated from work? 2. Are there any similar, previous cases in the organization that could provide some illumination as to how management strategies worked? 3. If the decision has been made to separate the employee, who is conducting the paper audit to insure that all records and documents in the employee’s personnel file are complete? Has legal counsel been asked to review draft letters and documents as well? 4. If there any interest in seeking a severance package for the employee versus a termination process? What are the benefits of this? 5. Have all options been explored in this case, including a suspension with pay, suspension without pay, termination or arrest on off site? 6. What kind of professional counseling is the problem employee entitled to? This may include psychological counseling, job and career counseling, financial counseling or family/marital assistance. . Of equal importance is the role of other kinds of professional assistance the employee may need. Persons experiencing serious difficulties may find that separation from work presents enormous financial hardship, even with the presence of a severance payment. A person at risk may also have exhibited behaviors at work that were extreme because they are the victim of physical or mental abuse at home. All of these reasons, and more, dictate the need for a comprehensive evaluation of the different kinds of professional assistance that could help the problem employee return to a productive life and meaningful job. Seek counsel from accomplished experts when it comes to identifying and managing a problem employee with the aim of reducing employer liability and insuring that your organization is protected from harm. This is excerpted from "Managing The Problem Employee" by Laurence Barton, Alan Friedman, Alan Jaffee and Mark Lies, Esq. Copyright © 2005. No portion of this work may be referenced, reproduced or used by any means without written authorization of the authors. Not a source of legal advice.