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Managing the Borderline Employee.

Borderline employees must be managed resourcefully to maximize the possibility of rehabilitating them, if that is management's goal, or to minimize the potential for litigation in the wake of termination. This article briefly examines tactics for effectively managing the borderline employee and focuses on strategies to reduce the dangers of litigation.

Review Employee Background and Develop Strategy

When faced with a borderline employee, the human resources or department manager should first review the employee's total background, including history with the company, career development and any extraordinary circumstances that might affect the employee's performance. It is important to develop a full picture of the employee's various problems and to determine the specific ways that the employee is performing marginally.

It is also useful to determine whether any outside factors are affecting the employee's performance and whether the employee might specially benefit from a company's employee assistance program. Determine the extent of the notice management has provided the employee regarding performance deficiencies and whether that notice has been oral or written.

Also determine the extent of documentation, if any, in the employee's personnel file. Whatever strategy is developed should take into account the employee's work history, the nature and seriousness of the problem, and the prior oral or written notice the employee has been provided.

Be Consistent in Your Treatment of Employees

Consistency in discipline and in termination of employees is essential to avoid disparate treatment discrimination claims. Similarly situated employees who are treated differently with respect to performance evaluations, warnings, performance plans or termination may afford a basis for a discrimination suit -- even when the differences in treatment are attributable to different managers or departments within the company.

Managers should be particularly sensitive to any such differences in treatment among employees under their direct supervision or within their departments.

To promote consistency, some employers have appointed a specific individual in management as a kind of "discharge czar," who reviews all prospective discharges and whose approval is necessary prior to any termination. That individual should be knowledgeable about legal requirements, be aware of company policies and practices and be able to make a thorough and dispassionate review of the circumstances of each termination.

In addition, it is important that the individual be capable of providing effective testimony in any subsequent litigation.

Counsel the Employee

Generally, juries take the sensible view that employees are entitled to know what is expected of them. If an employee is to be provided an opportunity to improve marginal performance, then the manager should counsel the employee directly and at length with respect to the specific deficiencies and the company's expectations for future performance.

The manager should schedule ample time for the meeting, notify the employee in advance of the general purpose and allow no interruptions during the conference.

Define specific performance problems in detail, using concrete examples. In conjunction with counseling marginal performers, some employers have provided a detailed job description -- or an updated job description -- setting forth the requirements of the position so that there is no confusion about management's expectations.

Another approach used by many employers is to first request the employee to detail the major responsibilities and performance measurements of the position. The employee's own position description can be used as a jumping off point for discussion of management's view of the position, and the contrasting perspectives can be illuminating and useful for both the manager and the employee.

Most importantly, the manager and the employee should review the essential responsibilities and functions of the position and the measurements of performance. The goal is to ensure that the employee has a complete understanding of the position requirements and goals, and management's performance expectations.

The manager should explain what is expected of the employee in the future and define the standards of performance. In the case of a corrective action plan, the manager and employee should jointly establish a plan for corrective action, if that is appropriate. The manager should specify the goals required of the employee and indicate the date by which the end result needs to be achieved. It is important to establish a reasonable timetable.

Finally, the manager must make clear to the employee the consequences of failure to remedy the situation and set forth the alternatives available, if any. For example, the manager should make it clear that termination may be the last resort. However, to the extent that demotion or transfer to other positions may be alternatives, those options should also be specified.

The main focus of the meeting should be on correcting the deficiencies and on supporting the employee. At the end of the conference, the manager should schedule a follow up meeting at an appropriate interval for further counseling.

If this meeting is not part of the standard performance appraisal process, record the specific points covered in the meeting in an appropriate, specific memorandum. Provide a copy to the employee and obtain an acknowledgment so that there is no misunderstanding as to what occurred.

Follow up on Counseling the Employee

It is essential to follow up with the employee in a systematic and timely way. Subsequent counseling should be tailored to the seriousness of the problem and the nature of the position. In the absence of timely follow up, marginal performance may be permitted to continue and further corrective action may be delayed indefinitely.

The performance problem might simply get lost, particularly in a case where managers change or the company is faced with a major reorganization. After a number of years, an employee whose performance deficiencies have never been adequately addressed may turn into a long-term employee who is particularly susceptible to being affected by a reduction in force, when obsolete or underdeveloped skills preclude a transition to another position.

Use Performance Evaluations and Disciplinary Notices Effectively

An employee's performance may become critically important in a wrongful or discriminatory discharge case, where an employee's performance may become the reason for discharge. An employee's performance may be especially significant in an age discrimination case, either in a case involving layoff decisions or age limitations.

A favorable "paper trail" of accurate performance evaluations will yield better results in litigation, and should improve employee morale by ensuring that employees understand their situations and are treated without favoritism.

Reliance upon informal, oral or highly subjective performance evaluations is difficult, except in higher level jobs where criteria for successful performance are necessarily subjective. However, even in these positions creation of a formal process seeking to quantify job skills and avoid bias is usually a prerequisite to a successful evaluation program.

One difficult aspect of performance appraisal is adequate definition of success on the job. Consideration should be given both to objective elements of performance, such as attendance, tardiness and willingness to work overtime, and subjective elements such as job knowledge, quality and relative efficiency.

Unguided judgments about what constitutes a "good" employee often are indefensible and lead to charges of favoritism. Written job descriptions or job analyses are of great help in this process.

Providing employees with the opportunity to review and comment upon their ratings is fundamentally fair and can produce important evidence that the employee agreed with the rating. Having a dated employee signature also can establish a time limit for complaints about the rating and reduces the chance that the employee will later claim that he or she never was informed of performance deficiencies.

Employee self-evaluation is a technique that some employers use with great success. Employees often evaluate their performance in much the same way as their supervisors, and this concurrence may be useful should problems arise.

Incomplete disciplinary notices frustrate the recipients and rarely correct employee deficiencies. They also may be given less credence by a judge or jury than the underlying facts warrant.

Incorporate the following points in disciplinary notices:

  • major responsibilities that the employee is not performing adequately and the skills, knowledge or abilities that do not meet standards.
  • specific illustrations of the deficiencies, including facts and dates.
  • the date and substance of prior training, instruction or counseling given to the employee.
  • the measurable or definable standard(s) the employee must meet.
    steps the employee should take to meet these standard(s).
  • the time frame in which the employee is expected to meet these standard(s).
  • the consequences of failing to meet these standard(s) within the specified period.
  • a reference to the meeting where the employee received a prior warning, including the employee's admissions and commitments.
  • the employee's signed acknowledgment that he/she has carefully read and received a copy of the notice.

Most importantly, management should tell the truth on performance evaluations. Inflated appraisals tie the hands of an employer and make it far more difficult to terminate for poor performance.

Discipline and Terminate with Reasonable Care

Once a decision has been reached to discipline or terminate an employee, management should take reasonable care in executing that decision. If the decision was preceded by an investigation, ensure that the investigation has been thorough and complete and that the record of it includes detailed notes and statements taken from witnesses.

The employee should be provided an opportunity to tell his or her side of the story. While this should take place in the presence of two representatives of the company, the meeting should otherwise be private.

Although it is important to communicate the true reasons for the underlying decision, the manner of termination should be as comfortable as possible. This is particularly important because courts have recognized other tort-based causes of action available to employees in relation to their termination, including a cause of action for defamation.

The employee should be informed that, consistent with established policy, no information will be disseminated by management of the company except the following: beginning date of employment, ending date of employment and the last position held.

Often out-placement assistance may soften the blow of termination and may allow an employee to land on his or her feet and move on without resorting to litigation.

Consider Obtaining a Release

When faced with the prospect of a termination, employers may choose to negotiate an amicable end to the employment relationship, with the employee accepting severance pay, outplacement assistance or other benefits in exchange for a written release of all claims against the employer. The employee may be much more receptive to such a settlement at the time of the discharge than he or she would be later.

Many wrongful discharge suits are brought only after the discharged employee has become angry and frustrated by prolonged, unsuccessful efforts to find other employment.

Early settlement avoids this problem. In addition, if the employer negotiates an agreement to end the employment relationship, it can offer the employee the opportunity to resign rather than be fired, which may be important to the employee.

It is important to obtain a release of all claims against the employer and against all representatives, agents, officers and employees of the employer. In order to be enforceable, a settlement agreement including a release of claims must be knowing and voluntary.

Employers should be certain that such agreements are in writing, are understandable and clearly and specifically waive rights. A reasonable period of time should be provided for employee deliberation, and the employee should be encouraged to consult with an attorney.

Benefits to which an employee is already entitled under law or contract will not be recognized as consideration for the execution of a release. Employers should document negotiations over the terms of such an agreement. A release obtained through duress, illegality, fraud or mutual mistake can be set aside.

Furthermore, care should be taken to comply with the Older Workers Benefit Protection Act, which sets forth a list of items necessary for a waiver of claims under the Age Discrimination in Employment Act to be considered knowing and voluntary, and therefore enforceable.


Careful management of borderline employees may increase productivity and reduce the risks of wrongful litigation. Furthermore, effective resolution of marginal performance issues -- either through counseling and rehabilitation or through termination -- may enhance the morale of co-workers who otherwise may have little choice but to continue to work with or alongside marginal performers.

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