H R S T R AT E G Y

Ideas for Dealing With

‘Difficult’ Employees
D ifficult workers can be defined
in a lot of ways: Sometimes it
is a person who simply is a bad fit
for the job. Sometimes it is an em-
ployee with mental disabilities. Or
it may be someone who is not in
sync with general standards of hy-
giene or behavior, someone who is
engaging in illegal behavior (such
as harassment), or someone who has
an attitude problem.
Whatever type of difficult em-
ployee you may be facing, dealing
with the situation requires tact—and
more. HR professionals need to ap-
ply some legal savvy, since when
the “difficult” behavior may indi-
cate mental and possible other dis-
abilities, employers can be liable if
they do not handle such employees
with care.
LEGAL CHALLENGES
According to Equal Employment
Opportunity Commission regula-
tions, the inability to interact with
others, if severe, may be protected
under the Americans With Disabili-
ties Act.
Now that the 2008 amendments
have broadened ADA protections,
employers may need to take a clos-
er look at whether an employee’s
disruptive behavior is caused by a
disability. The ADA Amendments
Act of 2008, which went into effect
Jan. 1, 2009, retains the disability
definition as “an impairment that
substantially limits a major life ac-
tivity” but adds activities such as
“communicating” to those qualifying
for coverage by the law. The amend-
ments make it clear that an employee
can be considered as having a quali-
fying disability even if mitigating
measures correct the problem.
Even before the broadening of the
ADA, monetary damages had been
awarded by the EEOC for discrimi-
nation under the law in categories
such as alcoholism, anxiety disorder,
cumulative trauma disorder, depres-
sion, learning disabilities, and drug
addiction, all of which might contrib-
ute to making an employee seem to
be “difficult.”
Speaking at an employment law
conference sponsored by the Ameri-
can Law Institute-American Bar
Association in Washington, D.C.,
then-EEOC General Counsel Ronald
Cooper noted that the new law will
probably mean more EEOC suits filed
under the ADA, as well as a “differ-
ent context” for such cases.
An additional legal challenge is the
fact that the rights of potential victims
of difficult employees also must be
protected. Failure to do so also can
have legal repercussions for an em-
ployer. For example, a company is at
risk if an employee bullies or sexually
harasses a colleague and no one steps
in to protect the victim.
Under the federal Occupational
Safety and Health Act, companies
also are required to keep the work-
place free of recognizable hazards,
which includes protecting co-workers
and others from violent employees.
When it comes to assessing and
addressing problems with employ-
ees, it helps to keep in mind a dis-
tinction described by Paul Falcone,
vice president, human resources,
Time Warner Cable (Los Ange-
les), and the author of 101 Tough
Conversations to Have with Em-
ployees: A Manager’s Guide to
Performance, Conduct, and Dis-
cipline Challenges.
In a presentation on this topic
at the recent Society for Human
Resource Management annual
conference and exposition in New
Orleans, Falcone explained, “Per-
formance infractions and conduct
violations are typically not treated
the same. You have a lot more dis-
cretion to escalate the process [of
dealing with the problem] when a
conduct issue is at hand.”
To protect your organization,
Falcone recommends that you al-
ways “document when it is some-
thing that can bite the company,”
such as an issue that could relate
to harassment. And it is wise to
document anything performance-
related, since that is something
that should be kept and followed
up in subsequent reviews and in-
teractions as part of a progressive
discipline program.
KEY PROBLEM AREAS
Understanding the various kinds
of disruptive behavior—what may
cause them, how they manifest
themselves, and how they can best

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hrfocus / NOVEMBER 2009

  
 H R S T R AT E G Y ( c o n t ’ d )
be dealt with—can help give a sense
of control of the situation, said man-
agement consultant Carol Hacker,
president of Hacker & Associates
in Alpharetta, Ga. She identified
the top 12 trouble areas involving
difficult employees:
 poor hygiene;
 improper dress;
 bullying;
 habitual procrastination;
 destructive complaining;
 substance abuse;
 chronic tardiness or absentee-
ism;
 personal issues;
 gossiping;
 dishonesty;
 bad attitude; and
 accessing inappropriate com-
puter material.
Hygiene and dress code issues
are among the most frequent prob-
lems reported by employers, Hacker
noted. Hygiene issues, in particular,
are very sensitive and complicated
to deal with.
Hacker advises role-playing with
a colleague to come up with a good
approach. “Think of yourself and
how you would want to be told,”
she said.
Often workers are in complete de-
nial of their effect on others, Hacker
said, and sometimes there is a medi-
cal problem that is the cause. Be di-
rect, she said, but focus on saving
self-esteem and always meet with
such employees alone.
An employee will often respond
to an initial conversation with shock
and denial, Hacker warned. She said
a manager should be prepared to set
specific goals for the employee.
“You need to get them to the point
where it is not too embarrassing” to
be discussing these delicate issues,
Falcone said. Referring to the prob-
lem as one of perception by others,
such as when an employee has espe-
cially bad breath or body odor that
is disturbing to co-workers, can help
since it isn’t possible to argue with
  hrfocus / NOVEMBER 2009
another person’s perceptions.
Falcone also recommends ac-
knowledging in the discussion with
the employee that it is a difficult
topic to discuss. “Most of the time,
people will address the issue if you
approach it right.”
When there may be a health issue
involved, Falcone reminded HR pro-
fessionals to be aware of ADA con-
cerns. Also be aware of religious or
cultural issues that can affect things
such as body odor, which may give
rise to religious or other discrimi-
nation claims.
“Focus on ‘workplace disrup-
tion,’ but be careful,” he cautioned.
“Check with counsel on these for
help.” When in doubt, get a written
response to the question from coun-
sel. “The record is being made. Get
your managers to understand this.”
Dress code violations are a little
easier to address, provided the com-
pany has issued formal guidelines
for what is and is not appropriate.
You need to uniformly administer
the policy, Hacker noted.
Religious discrimination also
can be tied to issues about dress,
Hacker said, so be sensitive to these
concerns. If there is a safety issue
preventing certain types of religious
garb or hairstyles, for example, the
company needs to document it care-
fully. If you are not sure, check with
an employment attorney.
Bullying is another area that can
be rife with lawsuit possibilities.
Denial of bullying situations is a
common response, but the boss
needs to ‘‘take a stand’’ with bul-
lies, said Hacker.
Provide clear examples of the un-
acceptable actions along with the
disciplinary procedures to follow
if the behavior continues. There
must be a clear process for report-
ing bullies and one that is safe for
the victim, she said.
Attitude problems and complain-
ing tend to fall more on the perfor-
mance side rather than being poten-
tial disability-related issues. You do
need to document these as part of
your progressive discipline program,
explained Falcone.
For “attitude” problems, Falcone
recommends telling the person in
private how you perceive his or her
actions and how he or she makes
you feel. Avoid using the term “at-
titude”—this is too subjective, Fal-
cone noted—and instead use the
word “behavior” or “conduct.” Fi-
nally, be specific and “paint a pic-
ture with words” in the disciplinary
write up.
ENCOURAGE CHANGE
HR can encourage a difficult em-
ployee to change, but it isn’t easy,
noted Hacker. “It’s not like baking
a cake,” she said. “You’re dealing
with a very complex human be-
ing, and you need to develop cop-
ing skills.”
Start with a conversation with the
individual—and document what you
do, Falcone recommended. To help
employees become more productive,
HR practitioners need to get them to
“buy in” to the solution by convinc-
ing them that behavior change is to
their advantage. Troubled employ-
ees can be a problem for themselves
as well as for the company, and most
people do not like to be in danger
of losing their jobs.
A manager or HR practitioner
working with a difficult employee
must assure the worker that the dis-
cussions, coaching, or warning are
motivated by the company’s belief
in the employee, said Susan Afan, a
senior regional vice president with
global staffing firm Robert Half
International.
“I think it is very important for a
manager to tell the person that you’re
doing this because you think they
have good technical skills, for ex-
ample, and that you see them growing
in the company but that if they don’t
do something about the issue, it may
stunt their growth,” she said. o