Performance, Corrective Counseling, Discipline and Termination

Dealing with employee performance, misconduct and disciplinary issues are understandably one of the least enjoyable aspects of running a business. However, employers who fail to effectively deal with these issues are far more likely to find themselves in court having to defend their actions and, in many cases, having to pay substantial jury verdicts and settlements. Accordingly, employers must have a comprehensive strategy for avoiding problems associated with these issues marked by the development and implementation of sound employment policies and procedures, regular and effective management training, ongoing legal consultation, and common sense practices.

At Miller Legal Group, P.C., we draft and review company job descriptions as well as a company’s employment policies and procedures relating to employee conduct, performance expectations and methods of discipline – including progressive discipline – to ensure that each of them:

  • Are clearly written;
  • Accurately and completely identify applicable job duties, performance expectations and expected standards of conduct;
  • Are effectively communicated and explained to employees; and
  • Are expressly acknowledged and agreed to by employees.

Avoiding Claims of Wrongful Termination and Employment Discrimination

At Miller Legal Group, P.C., we also recognize that properly documenting the circumstances leading up to or which otherwise form the basis of a particular employment decision or adverse action not only will serve as the best defense against allegations of unfair or discriminatory treatment  but also will provide the best deterrent and/or evidence against employees or ex-employees who are willing to lie about such circumstances or events. Accordingly, we also draft or review and revise existing:

  • Coaching, corrective counseling and/or disciplinary action notices
  • Performance appraisal forms and guidelines
  • Performance improvement plans and procedures
  • Termination guidelines and checklists
  • Exit interview forms and procedures

Likewise, a significant portion of our practice is devoted to counseling employers not only to ensure that each of these tools are used properly but also to ensure consistent application of the employer’s rules of conduct and disciplinary procedures. Specifically, we work with employers to ensure that, when confronted with a situation involving poor performance or unacceptable behavior, they implement appropriate and effective counseling, corrective action and/or disciplinary measures and that they do so in a timely and consistent manner. Similarly, we counsel employers to ensure that the underlying performance issues and corresponding corrective actions taken by the employer are memorialized in an objective and fact-based manner.

Of course, we also counsel employers about all aspects of employee terminations and separations, including where appropriate to offer severance pay in exchange for the employee’s execution of a waiver and release of the employer as well as its agents and employees. Because employers are so often the target of wrongful termination and employment discrimination claims, it is vital for employers to obtain guidance from an experienced employment law attorney before making employment termination decisions.

In addition to the foregoing, we work with our clients to ensure they have adequate internal complaint reporting and resolution procedures designed to encourage employees to raise issues of concern to them relating to the terms and conditions of employment or their work environment, including as it relates to alleged harassment, retaliation or other discriminatory or unfair treatment.  Such policies and procedures enable an employer to address such concerns in an appropriate and effective manner which, ultimately, improves the work environment and reduces the potential for employment-related claims.

Moreover, when employers are alerted to allegations or evidence of inappropriate or objectionable conduct, we counsel our clients about the necessity, if any, of a workplace investigation as well as about appropriate and effective disciplinary actions or other recommended remedial measures.

Understanding Management’s Role in Performance Management:  The Need for Training

Perhaps the most important responsibility of any manager is to effectively manage the performance of his or her subordinates. Achieving this objective is critical to the success of every business, as it enables businesses to maintain a stable and productive work environment. However, effective management of employee performance is equally critical from the employees’ perspective. This is because employees are unlikely to be successful and productive unless they have a clear understanding of their employer’s (and, in particular, their manager’s) expectations and are given timely and appropriate feedback in the form of encouragement, counseling and/or corrective action before their job performance deteriorates and other work-related problems arise.

The Manager’s Problem(s):
A Lack of Requisite Skills, Adequate Training and/or Desire

Unfortunately, however, managers often either do not have the requisite skills or do not receive adequate training to clearly and consistently communicate their expectations or provide appropriate feedback regarding employee job performance. Or worse, managers make excuses or otherwise simply do not “make the time” to perform these functions which are critical to their positions.

Oftentimes, managers contend they have too many other important tasks on their plate and, therefore, they do not have the time of manage performance and other employee issues. Other times, managers contend an employee is unmanageable and simply try to ignore the problem, hoping that the situation will improve on its own or the employee will quit. And other managers operate under the mistaken belief that they are effectively managing their employees and that there are no performance or other problems to be concerned about.

The reality is that managing employees – and, in particular, counseling and disciplining employees – frequently does not come naturally to those who find themselves in a management or supervisory role. In fact, for most people, the natural tendency is to avoid conflict whenever possible. Moreover, managers often wind up in their management roles in the first place because they have a certain skill set or knowledge base, have certain important business contacts or because they played a critical role in forming the business.

As a result, managers frequently come into a management role with little or no prior experience in leading and managing others. In addition to the foregoing, it is often extremely difficult for persons who have previously worked alongside someone as a co-worker to suddenly be promoted into a management position in which that same co-worker is now a subordinate employee.

Further Complicating Matters:
Employees’ Refusal to Acknowledge
Their Own Poor Performance

Further complicating matters is the fact that employees typically do not readily admit to their own substandard job performance or other wrongdoing. Instead, employees typically deny or rationalize their actions, making it significantly more difficult for persons in positions of management to constructively manage performance and other employee issues.

The Result:
Responsive Action Is Delayed, Ineffective,
Unproductive or … Altogether Ignored

The unfortunate consequence of these realities is that corrective and/or disciplinary action is often substantially delayed, ineffective or otherwise unproductive. Or worse yet: such “intervention” is ignored altogether. The bottom line is that, without the proper tools, managing employees can be extremely difficult and, if not done effectively, can lead to numerous problems which undermine a stable and productive work environment.

The Solution:

The best way for companies to minimize the impact of these realities and substantially reduce potential problems, is for those persons in top management to be fully committed to ensuring that management and supervisory level employees:

  • Have a clear understanding of the expectations regarding their own performance – i.e., that their own performance and eligibility for increased compensation will be evaluated based on, among other things, their consistent application of company policies and procedures and their effective management of their subordinates
  • Are – in fact – meaningfully evaluated based on these critical factors; and
  • Receive regular training about how to more effectively manage employee performance and why this is such an important responsibility

Manager Training – There Is No Such Thing
as Too Much Training

At Miller Legal Group, P.C., we recognize that no comprehensive strategy in dealing with employee performance is complete without adequate training for management level employees. Accordingly, we develop customized training programs and workshops for management employees relating to a variety of important topics including:

  • Performance management, coaching, corrective counseling, discipline and termination;
  • California’s Mandatory Sexual Harassment Training for Supervisors (AB 1825)
  • Harassment, discrimination and retaliation awareness and prevention
  • Identification and administration of leaves of absence and related issues (e.g., California Family Rights Act, federal Family and Medical Leave Act, military service laws, pregnancy and other disability laws, California’s workers’ compensation laws, etc.)
  • Disability accommodation and the interactive process
  • Proper handling of employee complaints, including allegations or evidence of whistleblowing or other wrongdoing
  • How to properly conduct a workplace investigation
  • Proper record-keeping procedures

For more information about our training programs and workshops or about how Miller Legal Group, P.C. can customize a training workshop for your Company, please click here.

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Contact a Ventura Labor and Employment Law Attorney

For more information about our other practice areas, our alternative fee options, or to schedule an initial consultation with an experienced El Segundo employment and HR law attorney specializing in prevention, compliance and litigation avoidance, please contact us at our South Bay employment law firm by e-mail or by telephone at (310) 426-2650.