Documenting Problem Employees

 Like a cancer,
he or she insidiously eats away at the fabric of a peaceful workplace and sows poison and discontent among fellow employees, while keeping within the very fringes of company rules and regulations. 

Problem employees and why you need to keep records

Problem employees abound in workplaces and neither small companies nor large ones are immune to them. Sometimes, they’re easy to spot – the lazy one who always turns in sub-standard work despite being given all necessary support to help him excel; or that one inconsiderate person who rubs everybody up the wrong way and considers any attempt to correct her as harassment; or the perennial late-comer who seems to think that showing up at work is optional. Other times however, the problem employee is not so easily identified. Like a cancer, he or she insidiously eats away at the fabric of a peaceful workplace and sows poison and discontent among fellow employees, while keeping within the very fringes of company rules and regulations.

Regardless of whether the problems are obvious or not, problem employees do not bode well for a company’s productivity or well-being. They consume a disproportionate amount of HR and management time and attention and since you, the HR manager, are the intermediary between employees and the organization, it falls to you to determine how this important issue ought to be tackled within your organization. As the HR manager, you ought to take precautions to protect your company (and if we’re being honest, your own job too) from the ugly consequences of not having a proper system in place for handling such employees as early as possible.

It is easy to fall into the trap of thinking that termination of employment is the simplest and most obvious route to taking care of a problem employee, but the reality is that it is hardly ever that easy. Problem employees become angry ex-employees. Like a marriage gone sour, angry and disgruntled ex-employees have been known to go out of their way to make the ‘divorce’ as excruciatingly painful for the former employer as possible. Expensive litigation, campaigns to assassinate the character of the company, even leaking confidential company information is not outside the realms of possibility for such people. Even companies as big as Yahoo and Microsoft are not immune. In recent times Yahoo has been forced into litigation after someone it described as a “former rogue employee” leaked confidential company information that formed the backbone of a book the company was very unhappy about. Such conduct, as Yahoo pointed out in its lawsuit not only puts the company at risk, it can “cause unnecessary distraction within [the] workforce” and “undermine the conduct of every other…employee” who honored a promise to safeguard confidential information. Microsoft for its part had its trade secrets leaked by another such ex-employee, who apparently was not happy about a poor performance review he received while employed at the company.

Such cases clearly show that problem employees represent a danger for the company and its workforce. The most important thing any HR manager can do is to anticipate the likelihood of such an occurrence. You should never wait until you have a problem employee before trying to decide the best course of action. In fact it is best to assume that at some point or the other, your company will employ at least one such employee and so you need to be prepared for the day that this delightful personality will walk through your doors and proceed to make your life a misery.

While it may be difficult to find an appropriate way of addressing this issue, at the very least, your company needs to make sure that its expectations are clear through written policies and performance reviews. More importantly however, bear in mind that as with most conflict-related issues in the workplace, the first line of defense is solid documentary evidence to back up the company in the event of any disciplinary hearings, adjudication or litigation that may arise.

Below we’ll talk more about the unique advantage that Forensic Notes offers to HR managers in addressing the issue of problem employees, but first it is important to understand how to address the issue of problem employees, including the benefits of keeping proper records and the potential consequences of not doing so.

I have a problem employee. What should I do?

We live in a highly litigious society and employee lawsuits are some of the most frequently filed.  In 2014 alone, 88,778 cases were brought before the Equal Employment Opportunity Commission, (EEOC) the agency that enforces employment laws in the United States. Managing problem employees in the face of our increasingly litigious society is one of human resources’ most serious challenges. Although it is tempting to ignore the problem due to fear of litigation, the best approach is to tackle the issue of problem employees head on. Below is a suggestion of what to do when faced with the problem of a difficult employee:

• Collect as much information about the problem from as many sources as possible. This will help you convince both yourself and the employee in question that the problem exists – and that the behavior must change.
• Have a meeting with the employee to discuss the issue without making a big scene.  Be honest, and upfront, and discuss what you are seeing and how important it is to have the whole department working in “harmony”. Focus on the problem, not the person.
• Set up a three-step disciplinary process that includes formal notices such as: verbal warning, first report in writing, and second/final report in writing.

From the outset, the goal should be to reach a mutually acceptable solution that resolves the difficult employee’s inappropriate behavior, but sometimes this is just not possible if the employee is unwilling to change. You may then find yourself with no other option but to terminate in order to protect your company and other employees. In that case, begin termination procedures in accordance with your company’s policies. Bear in mind though that firing the employee does not necessarily mean the problem is solved. In fact, there are well-documented instances where employees who are fired resorted to extreme action. One of the most notorious examples is that of self-described “powder keg” employee Vester Lee Flanagan, the onetime TV reporter who killed two former co-workers on live television. While it’s true that not every disgruntled employee will resort to such extreme action, it is also true that retaliation claims by former employees are not uncommon, so it is important that your company is proactive to protect itself against retaliation claims or other legal actions.

• Keep a record of everything that transpires and store this securely.This is absolutely the most essential step you can take to protect your company in the likely event that litigation arises, and should be an integral part of each of the four preceding steps. All information about and arising from the meetings and discussions should be recorded and this documentation should be stored safely in a manner that will protect its integrity and ensure its authenticity cannot be challenged. To be on the safe side, employment law practitioners recommend keeping records for at least five to seven years after an employee has left the firm.

How does good record keeping protect me and my company?

Record keeping is already mandatory for HR managers because of numerous various laws, which require employers to create and retain various employment records, so your company likely keeps detailed information about employees in personnel files. However, it is important to bear in mind that the kind of information that is required to be kept in relation to problem employees and how such information needs to be kept is quite different from the usual general record-keeping. For one, it is entirely possible that some details may be of an intimate or personal nature and may involve a third party whose anonymity needs to be protected. Or it may include some sensitive business information. These various kinds of sensitive data make it imperative that your company have a state-of-the-art information security system, preferably one kept outside the physical premises of the company such as that which Forensic Notes provides.  Also, as problem employees are more likely to institute legal proceedings or initiate complaints to adjudicatory bodies, or even expose your company to some form of liability, keeping the right kind of record is a strategic and prudent approach to managing these employees and protecting the interests of your company.

The right kind of record keeping protects you in the following ways:

Legally speaking, an employee who engages in reckless behavior, such as reckless driving or use of drugs or drinking on the job, can leave the employer liable for the actions within the “course and scope of employment.”

In such a case, the appropriate action to take when you learn of such behavior is to investigate the situation, impose discipline and keep a record of the issue and all actions taken by the company. In addition to other benefits, this will show that your company was not complicit in the employee’s actions. And consider the possibility that an employee who has no problem disregarding company rules and regulations will likely not have any problems being dishonest. In the event that adjudication is required, what is preventing him or her from lying and fabricating evidence? In the end, it’s your word against theirs. Considering the fact that in any employer vs. employee case, the company already has the distinct disadvantage of being perceived as the “big guy” trying to take advantage of the “little guy”, you need to have compelling evidence that establishes facts rather than hearsay or word of mouth testimony. Such evidence needs to be in a form that details every step taken by your company to address the problem, at the time they were taken. This will include every effort made by the company to assist the employee, his or her response to such efforts, observations made about any changes in behavior either by you or by other employees.

Obviously, all of this information amounts to a copious quantity of notes and materials, and ensuring their timeliness can be a burden, especially when you’re recording and storing everything manually. This is one of the distinct advantages that Forensic Notes offers. With the ability to make contemporaneous notes of everything, be it emails, memos, voicemails, SMS messages – or whatever it may be, Forensic Notes offers you the ability to create a detailed and accurate timeline of events in relation to this problem employee. Not only that, it also gives you the peace of mind of knowing that all your record keeping is not in vain – your records cannot be tossed out in court because they’re unverifiable or are subject to claims of being tampered with, which is a major disadvantage when documents are stored traditionally either in physical files or simply as electronic documents on your company server.

What kind of records should you keep and how does Forensic Notes help you do that?

It is best to keep all records of the behavior that is considered problematic including the date, time and reason given for each incident and who was involved. In addition, keep records of:

• Every complaint that you get about the employee
• All physical or electronic interaction with the employee.
• Details of discussion with the employee, including what was discussed, when and any witnesses.
• All performance issues related to the employee.

Why is Forensic Notes the best way to record information related to problem employees?

In today’s business world, it is not enough to keep only basic personnel records. A company needs to anticipate that a problem employee issue will arise, and prior to any lawsuit, take and keep detailed notes that will provide best evidence in a court of law.  The accuracy of your documentation can mean the difference between a long, tiresome litigation and a clean break from a problem employee.