Resolutions for the New Year
Resolutions for the New Year | Human Resource Executive Online
It's a New Year! Time for resolutions. One of HR's resolutions should be to try new approaches that address the workplace problems that keep coming back year after year after year. In keeping with this spirit, this month's column focuses on two of the most common and recurrent workplace problems that HR professionals are all too often called upon to address -- lackluster employee performance and workplace bullying.
By Keisha-Ann G. Gray
Question: What is the proper way to write someone up for not doing their job?
Answer: There are a number of recommended best practices that employers should follow when disciplining employees for poor performance. While employers remain free to customize disciplinary procedures in a way that is best suited to further the goals of the particular organization, the most widely used approach is called "progressive discipline," commonly referred to as the "three strikes, you're out" approach.
Progressive discipline is exactly what it sounds like -- a disciplinary program that requires employers to "progress through" each step of corrective action before proceeding to the next. Substantively, the contours of progressive discipline can be summed up in four steps:
1) A verbal warning;
2) A first written warning;
3) A second written warning; and, finally,
4) Termination of employment.
Generally speaking, the progressive disciplinary process remains constant as to the form the write-up takes, while the level of disciplinary action fluctuates proportionately, based upon the nature of the infraction.
At its core, the goal of progressive discipline is not to embarrass employees or expose them to judgment by co-workers; rather, it is designed to apprise employees of their performance deficiencies so they may modify their behavior.
In large part, employers wishing to employ progressive discipline should begin by first providing each employee with a comprehensive job description discussing, among other things, job duties, expectations and performance goals. From there, the employer should draft a model progressive disciplinary policy to be included in its employee handbook, which links substandard job performance to the progressive disciplinary process. The following is an example of suggested language:
All employees are expected to meet XYZ's standards of work performance. Work performance encompasses many factors, including attendance, punctuality, personal conduct, job proficiency and general compliance with the Company's policies and procedures.
If the employee does not meet these standards, the Company may, under appropriate circumstances, take corrective action, other than immediate dismissal. The intent of corrective action is to formally document problems, while providing the employee with a reasonable time within which to improve. The process is designed to encourage development by providing employees with guidance in the areas that need improvement.
Once the policy is in place, application issues often arise, but can be avoided by adhering to the following helpful tips:
* Conduct a thorough investigation (within a reasonable amount of time), gathering all of the facts, including the employee's rebuttal, before drafting an incident description;
* After settling on the level of discipline to be imposed, explain to the employee the consequences of his or her actions and why the level of discipline is warranted;
* Thereafter, communicate the likely next step in the disciplinary process should the undesirable behavior persist;
* Finally, and most importantly, document everything -- including the verbal warning -- and capture the employee's signature on such documentation as proof that the employee received notice of his or her unprofessional conduct.
In the event of more serious misconduct, employers may wish to bypass all or several steps in the progressive disciplinary process, jumping straight to immediate termination.
Immediate termination may be warranted when the employee engaged in acts of insubordination, failed to report to work or deliberately refused to perform his or her work, to name a few.
To preserve the immediate-termination option, employers should make sure a disclaimer is included in the employee handbook, explaining that the employer reserves the right to depart from standard progressive disciplinary procedures without warning. This ensures that the at-will employment relationship is preserved and no contractual rights to the progressive disciplinary process are implied or expressly created.
Question: How do you handle partners and supervisors in the firm who scream in front of other employees and speak down to their employees? Some partners and supervisors in our company tend to bully people, sometimes threatening to fire employees without cause. What should HR do, if anything, about this? Do any state or federal laws restrict this type of behavior?
Answer: Workplace bullying is not covered per se in federal and state employment laws and regulations, and courts have been reluctant to extend protections afforded by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), The Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623, or the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101(2) to cover such "bullying."
In particular, courts justify their reluctance by characterizing workplace bullying as a typical occurrence and the natural result of close societal interactions properly dealt with internally by human resources or upper-level management, and not one that affords a legal remedy.
Nonetheless, bullying in the workplace has caused employers to incur substantial litigation costs when "bullied" employees bring harassment claims, based on their race, gender, age or other protected characteristics.
Potential Hostile Work Environment Claims
We all know that employees who feel "wronged" or "picked on" are easy targets for litigious plaintiff attorneys. When workplace bullying gives rise to a lawsuit (and it often does), it will almost always come in the form of a hostile work environment claim, which requires a showing that the offensive or "bullying" behavior was motivated by the employee's membership in a protected class (race, gender, sex, national origin, religion, disability or age (40 or over)) -- and everyone in one way or another is a member of a protected class.
Therefore, if the offensive supervisor/partner is an equal-opportunity harasser who engages in blanket-style bullying of employees without regard to protected characteristics, he or she -- as well as your company -- will have a good chance of successfully defending against such a claim.
However, the costs associated with defending against these types of claims are so high that it makes the conduct that spurred the claim itself not worth the expense and aggravation.
At the state level, the legal standard for establishing a hostile work environment claim parallels its federal counterpart. However, states provide a more expansive list of protected characteristics upon which a claim may be based. Although the following four-state survey is by no means exhaustive, it is representative of the scope of protections provided under state law.
For example, under the New York State Human Rights Law, N.Y. Exec. L. § 296 et seq., harassment and discrimination based on marital status, creed, genetic disposition, carrier status and sexual orientation are prohibited, as compared with Title VII where they are currently not. New York also has broader protections for age discrimination, reducing the age of covered employees to those 18 years of age or older.
In New Jersey, state law adds protections under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq., for nationality, ancestry, service in the armed forces, domestic partnership status, civil union status and gender identity or expression.
Moreover, in Florida, the state's protections mirror those found under federal law, with noteworthy additions for the protection of marital status, individuals infected (or believed to be infected) with AIDS and the prohibition of age discrimination for all age groups. Fla. Stat. § 760.50.
Finally, California's Fair Employment and Housing Act, Cal. Gov. Code § 12960 et seq., includes protections for childbirth or related medical conditions of any female employee, as well as providing protections for those employees perceived to have one of the protected characteristics, even if they do not.
Potential Intentional Infliction of Emotional Distress Claims
Alternatively, employees can invoke the common-law tort theory of intentional infliction of emotional distress ("IIED"). IIED is broadly defined as "extreme or outrageous conduct [which] intentionally or recklessly causes severe emotional distress to another." Restatement (Second) of Torts § 46(1).
While IIED is a viable option, it typically yields little relief, as most IIED claims are left vulnerable on two fronts -- the conduct is not deemed severe or outrageous enough or the employee is not deemed to have suffered severe emotional distress. This is primarily true because the evidentiary standards are simply too high.
Nevertheless, an IIED claim remains an option for bullied employees, and defending against such claims, once brought, will cause the employer more headaches than the bullying behavior was worth in the first place.
Ways Employers Can Protect Themselves from the Acts of their Supervisors
Employers may protect themselves from liability caused by the bullying and harassing behavior of their supervisory employees if they take reasonable steps to prevent a hostile work environment from occurring and to curb the supervisory employees' bad behavior.
To do so, the employer must offer proof that it:
* Exercised reasonable and prompt care to prevent and correct the hostile environment and;
* That complaining employees unreasonably failed to avail themselves of the preventative or corrective opportunities provided by the employer.
Anti-Bullying Legislation on the Horizon
Because bullying is a common and serious issue, many states have taken steps to pass legislation aimed at eradicating it from the workplace. Thus far, 13 states -- California, Connecticut, Hawaii, Kansas, Massachusetts, Missouri, Montana, New Jersey, New York, Oklahoma, Oregon, Washington, and Vermont -- have introduced, but have not passed, comprehensive anti-bullying legislation.
This legislation, commonly referred to as the "Healthy Workplace Bill," sets out to comprehensively define workplace bullying and impose liability (including the availability of compensatory damages) on individual perpetrators and their employers for engaging in such behavior.
Advice for HR Professionals
In sum, absent federal or state statutory guidance, HR leaders are, unfortunately, left to navigate this difficult workplace issue independently. In large part, the best attack on commonplace workplace bullying starts with the enactment of preventative measures embodied in a comprehensive company policy directly addressing bullying issues.
Enacting such policies decreases the employer's liability exposure because it decreases both the likelihood of future bullying and should, if enacted properly, temper current bullying behavior as well. Of course, once in place, an anti-bullying policy is only effective to the extent it is applied in an evenhanded and consistent manner from the top down -- without exception. This strict adherence puts employees, partners and supervisors alike on notice that the policy is more than mere lip-service and that deviations will not be tolerated.
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Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer Rose in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.
December 29, 2008 Copyright 2008© LRP Publications
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