No matter the industry or company size, all business leaders and managers will have to have difficult employee conversations at one point or another. Whether it be for performance issues, misconduct, policy violations, or layoffs, difficult conversations come with the territory of running and managing a business. Having the right tools and knowledge is critical in avoiding a potential HR nightmare or lawsuit. We have summarized the top 4 pitfalls to avoid when having to conduct difficult employee conversations.

1- Being Unprepared

Attempting to address an employee’s poor performance, misconduct, or policy violation is brutal enough. It will no doubt elicit an adverse reaction from the employee. If you have not done your due diligence to collect and confirm the facts, your employee could feel that they are being mistreated. The solution? Do your due diligence! Before meeting with the employee, take the time to collect the relevant facts to support what you are saying with data. Gather any key metrics or incidents related to your conversation ahead of time and review all pertinent company policies or rules related to the situation. Map out your discussion ahead of time: what is the problem, how it impacts the team and/or company, and what you’d like to achieve. Having possible solutions to the problem ready will help the employee feel they have a plan to improve. While planning out your conversation, consider whether you should have an HR representative or another leadership team member present. Including another person can help mediate the discussion, keep tension lower and on topic.

Now that you have done your due diligence and have an outline ready for the conversation, you need to tackle the conversation venue. Does it make sense to discuss the problem at a regularly scheduled 1:1 or in a separate meeting? Will a phone/video call suffice, or is it more appropriate to try and have this conversation in person (with Covid safety measures in place, of course)? Thoughtfulness in preparation, venue, and time for your difficult employee conversation will set you and your employee up for success.

2- Poorly Established (or Missing!) Workplace Policies

Suppose you need to have a conversation with an employee about policy violations or workplace misconduct. What could make that difficult employee conversation worse? That policy the employee is violating was poorly established or missing, and the employee is unaware of it’s existence. Well, now you have the potential for another HR nightmare or lawsuit. Add a review of your employee policies to your due diligence list and ensure they provide guidance and notice to employees. Are your policies up to snuff? Great! If not, consider revamping your policies and seeking professional legal advice for compliance and best practices for establishing them with your workforce. Your policies should be compliant, documented and easy enough for your employees to understand and managers to objectively enforce consistently.

A great way to avoid a legal pitfall when enforcing a workplace policy is to require employees to confirm receipt and understanding of policies. Have your employees sign an acknowledgment form verifying they have read the policy. The acknowledge provides evidence of notice and that the termination was warranted.

3- Inconsistent Enforcement of Policies

Now that you have reviewed your policies, verified acknowledgment, and confirmed that they are in place. But have the policies been consistently enforced? If not, the policies are useless and can lead to another potential pitfall. Consider the following examples regarding the enforcement of timeliness for work shift policies:

• At Company A, the receptionist habitually shows up 15 minutes late to work 2-3 times a week, but their work performance. After several months of this behavior and complaints from other employees, management decides to discipline the receptionist (an African American). At the same time, management disciplined a recently hired assistant (Caucasian) for being late twice in her first two months at work. Later on, both the receptionist and assistant are let go. The assistant files a lawsuit for race discrimination, alleging she was treated worse than other employees for her tardiness due to her race. The receptionist also filed a lawsuit for race discrimination for her termination.
• At Company B, the receptionist was late for three days of work over the course of a month. Employees at Company B were required to punch in and out on a time clock that are reviewing by management monthly. The manager met with the receptionist to discuss the tardiness and brought the timecards to avoid a dispute. Company B prepared a written statement documenting the meeting and put it in the employee’s file. The receptionist continued to be tardy into the next month, which lead to a second warning by management – comply with the attendance policy or be fired. After failing to punch in and out one day, the receptionist was fired. Company B was not sued and did not pay out unemployment because of consistent policy enforcement of workplace policies and documentation to support it.

As illustrated in these examples, different approaches to workplace violations can have significantly different financial and operational outcomes. Be consistent, and enforce the policy violations promptly with proper documentation. Seeking professional legal advice to enforce policy correctly adds an extra layer of protection against possible pitfalls. It gives you and your management team confidence that they are approaching these difficult employee conversations correctly.

4- Failing to Properly Document the Conversation

We brought up documentation in our last pitfall. Now, employers are generally not required to document employee misconduct or meetings to address such misconduct. Nonetheless, as you are probably now aware, employers that document such matters will almost always have a better outcome when an employee issue arises. By consistently documenting employee matters:

• Employees are placed on notice of their violations which can prevent frivolous lawsuits;
• The employer’s credibility is bolstered, and there is a reference point for future employment decisions based on similar conduct; and
• The employer has written evidence and records if that manager with knowledge of the incident is no longer with the company or forgets the specific details.

When documenting conversations or meetings, employers should have a standard form in place. The form should be readily available to record the information, discuss the information with the employee, and keep the form in the employee’s personnel file for future reference. Avoiding a difficult employee conversation is impossible, but you can avoid the potential legal pitfalls that can follow.

Enlist Help

Before addressing performance or workplace misconduct with an employee, employers should be mindful of which laws may be implicated by an adverse employment action. Equinox attorneys are experienced in dealing with difficult employee conversations. They can help you recognize mistakes to avoid during the employment relationship to remain compliant with employment laws and limit your legal exposure. Contact us at 425-250-0205 or contact@equinoxbusinesslaw.com.

Legal Disclaimer: This article contains general information. Do not view this article as legal advice. Talk with counsel familiar with your unique business needs before taking or refraining from any action.