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Forgiving Bosses Can Set the Stage for Employee Lawsuits

Most people prefer to steer clear of confrontation. But when supervisors take that approach with respect to under-performing employees, they may be setting their employers up for litigation. It doesn't have to be that way. Learn some lessons from a seasoned employment attorney who has represented hundreds of employers in such cases.

Most supervisors are promoted to that role not on the basis of their
leadership abilities, but because they were good employees, according to Chad A. Shultz, a partner in the Atlanta Office of FordHarrison, LLP. That doesn't mean most can't become successful supervisors, merely that they need to be trained and, naturally, evaluated according to their performance in that role.

"It's easy to manage good employees, but really hard to manage those
that fall short," he says. While that statement will not come as a revelation to many, the problem arises when supervisors fail to grasp the legal and employee morale hazards when they, often unconsciously, use "hope as a strategy" for improving employee performance. They merely hope underperforming employees will, spontaneously, address their shortcomings. And when that doesn't happen, such supervisors hope the employee will quit and take another job elsewhere.

Perceiving Lower Expectations

What typically happens instead, Shultz says, is that the employee grows
comfortable with perceived lowered expectations, and other employees observe the lack of consequences for under-performance and begin to question the necessity of performing at higher levels.

The ultimate result is that the supervisor who fails to directly address the
underperformance usually begins conveying what Shultz calls "under-theradar" messages of dissatisfaction to such employees, such as by not inviting them to meetings or lunch.

The underperformers interpret these signals not as an indication of a

performance issue, but merely that the boss simply does not like them -possibly for illegal reasons: "He doesn't like me because" of -- fill in the blank -- my age, religion, race, gender.

Meanwhile, formal performance appraisals of such workers by nonconfrontational supervisors often do not give any serious indication of under-performance.

What's to be done? Shultz and his colleague Sarah P. Wimberly outlined

ten rules for preventing lawsuits in a succinct book titled "Manage Employees or Get out of the Way," available from Ford Harrison. Here are some brief highlights, which for some serve as excellent reminders of proper supervision techniques.

Tips for Avoiding Litigation

1 Earn respect.

That's the goal, not simply being liked. "If your employees respect you, they will be more likely to respect the decisions you make and less likely to think they were treated unfairly or illegally. Respect is earned by setting a good example, confronting difficult situations head-on and disciplining appropriately.
2 No surprises.

If an under-performing employee is terminated, it should not come as a surprise. When it does, expect the sort of angry reaction that can prompt the discharged employee to consult an attorney and possibly sue your company. Preventing surprises involves clearly laying out expectations, providing constructive feedback, giving honest and specific performance reviews, and making the consequences of future poor performance clear.

3 Communicate performance issues properly.

That includes avoiding generalities like stating only that an employee's work "needs improvement" or the worker exhibits a "bad attitude." Instead, give concrete examples of areas that need improvement. Use objective sources of information. Instead of saying "your productivity is unsatisfactory," say (if the data is available), for example, "the production reports show a 20 percent decrease since the last quarter." Also, avoid beginning sentences with "I" and "you" as in "I'm unhappy with your production." Doing so may be construed as a personal attack. Stick to the specifics of the performance issue.
4 Document, document, document.

Perhaps the best defense in a legal proceeding is having full documentation that the employee has been made aware of performance issues, complete with warnings of consequences when performance issues weren't resolved. You can even use e-mail for the purpose, including e-mail to yourself that chronicles actions you have taken and what you have communicated to the employee. The time-stamping of email adds critical detail to the document trail.

5 No "BS."

"Sugarcoating the truth" when communicating with underperformers "by making a problem less severe won't help you or your employee and can actually put you on the fast track to litigation," according to Shultz. The same applies to defending yourself in court. "The law allows you to defend your actions with a legitimate, non-discriminatory reason." Don't make an ad hoc rationalization of your actions. Courts and juries will be suspicious.

Shultz's parting, un-sugarcoated statement that can be relayed to any nonconfrontational supervisors in your organization: "Once you accept the responsibility associated with being a boss, you need to do it right."

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