Author: Deborah S. Hildebrand

This Supervisor Briefing examines the law and best practices regarding poor performance, as follows:

  1. Understanding Work Rules and Performance Standards
  2. Diagnosing Poor Performance
  3. Coaching Poor Performers
  4. Taking Progressive Disciplinary Action
  5. Terminating a Poor Performer
  6. Test Yourself

Understanding Work Rules and Performance Standards

All employers should establish and clearly communicate policies that advise employees of the work rules and performance standards by which their performance and behavior will be evaluated.

While policies may vary widely in how they are written, employers should cover these four key areas in their written policy on work rules:

  • On-the-job behavior, such as insubordination, gambling, intoxication, discrimination, harassment, sleeping and horseplay or fighting;
  • Work performance, such as poor quality, low productivity, and failure to meet established standards;
  • Dishonesty, such as theft, falsification of business records (i.e. employment application, time card, reimbursement report) and willfully damaging employer property; and
  • Absenteeism and tardiness, such as chronic absenteeism, excessive tardiness and unexcused absences.

Tip

Certain absences are protected by federal and state law, including the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and state workers' compensation and leave laws. Failure to administer attendance standards in an equal manner may result in a discrimination or retaliation claim. However, an employer may still discipline an employee for poor performance unrelated to protected leave as long as the employer would have sufficient grounds for discipline if no leave was taken.

Did you know?

No-fault attendance policies, where discipline is automatic after a certain number of absences, may open up employers to liability under the ADA or FMLA by either neglecting to provide reasonable accommodation, or by failing to count qualifying absences as protected leave, not subject to discipline.

Employers should properly train supervisors on the organization's work rules and performance standards and train them how to apply them fairly to all employees on their team.

Did you know?

Certain employers, such as federal and state agencies, have legal obligations regarding employee performance and the formal performance review process, including specific review formats and storage of records.

Tip

The Americans with Disabilities Act (ADA) and the Rehabilitation Act generally do not have a bearing on the right of employers to evaluate their employees. Therefore, employers may apply the same performance evaluation criteria to employees equally, whether they have a disability or not.

Employers can use employee handbooks to outline the organization's work rules and performance standards. The handbook should contain policies that describe in specific terms what types of behaviors are unacceptable as well as an overview of the performance management process.

Supervisors should require employees to acknowledge in writing that they have received a copy of the handbook and that they agree to follow the policies described in it to be sure employees understand how they are expected to behave and perform on the job.

Diagnosing Poor Performance

Once a supervisor notes an issue with an employee's performance or behavior, it is important to identify the root cause of the problem to deal with it appropriately. Never assume it is the employee's lack of effort or carelessness causing the problem.

Possible causes of poor performance may include, but not be limited to:

  • Inadequate or insufficient training;
  • Poor work systems, out-of-date policies, or inadequate procedures;
  • Inadequate tools or equipment;
  • Poor quality or inadequate supervision;
  • Employee's lack of understanding about his or her job duties, priorities or goals;
  • Unclear work instructions;
  • Excessive workload due to short staffing or an increase in workload;
  • Unrealistic targets or deadlines;
  • Poor work relationships, including bullying or harassment;
  • Poor physical or mental health; and
  • External personal problems.

Although supervisors have no control over the last two issues, they can intervene in the others. Supervisors should coach employees on specific performance issues. Setting and clearly communicating performance standards and expectations, observing and providing feedback, and conducting performance appraisals are all methods to help a supervisor achieve the best results from employees.

Did you know?

Under the ADA, when an employee does not notify the employer of the need for accommodation until after a performance problem has occurred, reasonable accommodation does not require that the employer overlook the poor performance or withhold disciplinary action, including termination, warranted by the poor performance.

Once employees understand there are deficiencies in their performance, it is easier to determine the cause and to find a workable solution.

Coaching Poor Performers

No matter how employers choose to implement their performance improvement and disciplinary policies, it is important that supervisors always maintain an objective, constructive and nonconfrontational atmosphere when dealing with poor performers.

Coaching employees - observing their performance and offering detailed feedback - can strengthen the communication between the supervisor and employee and increase the likelihood that the employee will meet performance standards. Coaching sessions offer supervisors and employees the opportunity to discuss progress toward successful performance and established goals.

Coaching sessions are different from an annual performance evaluation in that they occur more frequently and focus on only one or two aspects of performance. Additionally, they are different from disciplinary action in that they are less formal and are a more proactive measure intended to improve performance before discipline is warranted.

To make a coaching session effective, supervisors should focus on specific behaviors or actions, not personality. Follow these key elements of coaching:

  • Observe the employee's work by focusing attention on a specific aspect of the employee's performance;
  • When the employee's performance meets established standards, note why and how;
  • Advise the employee of their successful and unsuccessful performance;
  • Discuss solutions for how to improve and maintain consistent performance; and
  • Follow up regularly to review the employee's performance and determine if the employee requires additional coaching, training or other support.

It is vital that supervisors follow up with employees to regularly review performance not only as a part of a formal performance improvement or disciplinary action plan, but as a routine part of overall successful performance management.

Tip

When coaching employees, ensure feedback is timely and honest. This requires supervisors to link behavior with feedback that is accurate and objective and to provide it as soon as possible.

If coaching does not result in improved performance or behavior, supervisors will need to escalate the discussion and take progressive disciplinary action. Before taking disciplinary action, however, supervisors may want to ask themselves these questions:

  • Is the employee working at the same expected level as other employees doing the same job?
  • Are there obstacles beyond the employee's control that are affecting the employee's performance? Can the employer remove any of them?
  • Is the employee willing and able to improve performance or correct behavior?
  • Were work rules or the expected performance level communicated to the employee?
  • Is the disciplinary action reasonable based on the normal capabilities of others working under similar conditions?

Tip

To avoid legal issues, employers should establish a disciplinary policy that grants employees a certain degree of "due process." Due process refers to the fair and equitable application of disciplinary action along with the right to appeal or correct negative evaluations.

Due process means employees:

  • Know job expectations;
  • Know the consequences of not fulfilling those expectations;
  • Are given an opportunity to improve performance;
  • May expect consistent management action and fair discipline;
  • Are allowed to present a defense; and
  • May appeal any disciplinary action.

Taking Progressive Disciplinary Action

Progressive disciplinary action is a process for dealing with job-related behavior or poor performance that does not meet expected standards, and where penalties increase upon each repeated occurrence.

Progressive disciplinary action generally incorporates some combination of the following steps:

  • Verbal warning;
  • Written warning;
  • Suspension;
  • Last-Chance Agreement; and
  • Termination.

In the absence of an employment contract or collective bargaining agreement, most employment relationships are considered at-will. Under at-will employment, both the employer and the employee are free to terminate the relationship at any time, for any reason that does not violate federal, state or local law.

At-will employment does not require employers to have progressive disciplinary steps. On the contrary, to preserve at-will employment, employers should reserve the right to apply whatever discipline is deemed appropriate for each specific situation. Employers that lock themselves into a progressive discipline policy without flexibility are more likely to find they have unintentionally produced a situation where employees can only be fired "for cause."

While progressive disciplinary action may start out with a coaching session or a mere verbal warning, it may ultimately progress to termination if the poor behavior or performance does not improve.

Progressive disciplinary action is a more formal process than a routine coaching session. Supervisors should initiate a one-on-one meeting to address any issues and determine the best solutions. During a disciplinary meeting, supervisors should:

  • Clearly explain when and why an employee's unsuccessful performance is an issue, e.g., the impact on co-workers, the department or business;
  • Seek the employee's agreement that there is a problem with certain aspects of his or her performance;
  • Ask the employee for input regarding the cause of the problem;
  • Consider any mitigating factors the employee offers;
  • Restate expectations in terms of job duties, performance and goals;
  • Ask for input on what the employee can do to improve performance;
  • Come to an agreement with the employee on a performance improvement plan;
  • Establish a timeline for improvement;
  • Schedule a follow-up meeting to review the results; and
  • Document the disciplinary meeting, including areas of needed improvement, agreed-upon action steps, and the timeline.

Employers are advised to obtain the employee's signature on the performance improvement plan at the end of the formal disciplinary meeting as recognition that the employee is aware of his or her commitment and responsibility to improve performance or eradicate poor behavior.

Did you know?

Employers are not legally required to create any documentation of disciplinary meetings. However, there is an expectation - especially in the eyes of the law - that employers will notify employees when their performance or behavior may lead to termination. This includes making a record of informal coaching sessions as well as formal disciplinary meetings.

Progressive disciplinary action must be applied uniformly. The only exceptions may be for the health and safety of employees or for flagrant violations of rules, such as theft or violence. Inconsistent application of policy can expose employers to claims of discrimination.

Did you know?

In a recent court case, the court concluded that an employee could proceed with her age discrimination case against her employer where the employee showed that the employer regularly applied its progressive discipline to younger employees, but did not apply the progressive discipline policy consistently to older employees.

Tip

Employers with unionized employees should review the collective bargaining agreement to ensure all required progressive disciplinary action steps are followed properly.

If an employee's performance still does not improve, an employer may choose to invoke a last-chance agreement. This is the most serious type of corrective action and serves as a final notice before termination.

This step is generally taken after coaching and progressive disciplinary action have not resolved the problem. It may also be used for first offenses of major work rule violations, such as insubordination, harassment, or falsifying business records.

Once an employee reaches this stage of corrective action, any further failure to meet expectations in any area may lead to termination. At this level, the employee and employer must decide whether or not employment should continue.

Terminating a Poor Performer

If despite all attempts to improve performance an employee continues not to meet the employer's levels of expected performance, a supervisor may need to consider other options. These options may include:

  • Transfer to another position;
  • Transfer to another department;
  • Demotion; and
  • Termination.

Employers have the right to terminate any employee who does not perform satisfactorily on the job. Even employment contracts require satisfactory performance or the employee may be terminated. However, before terminating an employee for poor performance, employers should exhaust all other possibilities, including coaching, retraining and progressive discipline.

Tip

At-will employment does not protect employers from employees who claim unlawful discrimination, illegal harassment or retaliation for exercising a protected right.

Employers should be sure to base their termination decisions on objective standards and document problems as they occur to substantiate the reason for a subsequent termination. Firing employees without legitimate grounds may result in a wrongful discharge lawsuit. The best protection against a claim of wrongful discharge or discriminatory firing is documentation.

Did you know?

Equal employment opportunity (EEO) laws prohibit specific types of employment discrimination. Collectively, these laws prohibit discrimination in most workplaces based on race, color, religion, sex, age, national origin and status as an individual with a disability or a protected veteran. Some states include additional protected classes, such as sexual orientation. Additionally, employers may not terminate an employee who is protected as a whistleblower or due to involvement in a complaint filed under the laws enforced by the US Department of Labor (DOL).

Test Yourself

  1. The Americans with Disabilities Act does not:
    1. Allow employees to take time off for medical reasons.
    2. Allow employers to apply the same evaluation criteria for performance to an employee with a disability that it applies to employees without disabilities.
    3. Have a bearing on the right of employers to evaluate their employees.
    4. Have an impact on no-fault attendance policies.
  2. Supervisors should never assume an employee's poor performance is due to:
    1. Lack of effort or carelessness.
    2. Inadequate or insufficient training.
    3. Inadequate tools or equipment,
    4. Unclear work instructions.
  3. To make a coaching session effective, focus on behaviors or actions, not:
    1. Performance.
    2. Personality.
    3. Knowledge.
    4. Skill sets.
  4. Due process:
    1. Is not available under at-will employment law.
    2. Only occurs in collective bargaining agreements.
    3. Relates to the establishment of a due date for the disciplinary process.
    4. Refers to fair and equitable treatment.
  5. Which is not true about progressive disciplinary action?
    1. The penalties increase upon each repeated occurrence.
    2. It is a more formal process than a routine coaching session.
    3. It may be used by at-will employers.
    4. There are never any exceptions to how it is applied.
  6. To preserve at-will employment, employers should:
    1. Never terminate an employee without using a progressive disciplinary action plan.
    2. Reserve the right to apply whatever discipline is deemed appropriate for each specific situation.
    3. Never use a progressive disciplinary action plan to counsel employees.
    4. Terminate employees rather than use disciplinary action.

Answers

  1. c. The Americans with Disabilities Act (ADA) and the Rehabilitation Act generally do not have a bearing on the right of employers to evaluate their employees. Therefore, employers may apply the same evaluation criteria for performance to an employee with a disability that it applies to employees without disabilities.
  2. a. While an employee's poor performance may be influenced by many things, employers should never assume it is the employee's lack of effort or carelessness causing the problem.
  3. b. It is important that supervisors always maintain an objective, constructive and nonconfrontational atmosphere when dealing with poor performers. That means they should focus on specific behaviors, not personality.
  4. d. Due process refers to the fair and equitable application of disciplinary action along with the right to appeal or correct negative evaluations.
  5. d. Progressive disciplinary action must be applied uniformly. The only exceptions may be for the health and safety of employees or for flagrant violations of rules, such as theft or violence. Inconsistent application of policy can expose employers to claims of discrimination.
  6. b. At-will law does not require employers to have progressive disciplinary steps. In fact, to preserve at-will employment, employers should reserve the right to apply whatever discipline deemed appropriate for each specific situation.