Nothing draws out an employee’s true nature quite like a global pandemic. Many workers have risen to the occasion during the COVID-19 crisis and worked tirelessly to ensure the safety of their families and communities. On the other hand, some took advantage of remote work or limited supervision by watching “Tiger King” or baking a lot of bread. One lesson that’s become glaringly clear is it pays to have high-quality staff.
Separating the Wheat from the Chaff
Employers facing the wide spectrum of human behavior over the past year have often felt like their hands were tied. How can you reward your best employees’ hard work when recognition lunches are no longer an option? Conversely, how do you prove Employee A spent 3 hours of his shift searching for toilet paper and Lysol wipes at stores across town? And so long as the work is getting done, does it matter?
Most of you will recognize the following scenario or some variation thereof: You had an employee who produced mid-level work and generally showed up on time but had a string of recent “illnesses” that happened to fall on Mondays and Fridays. You were getting close to the breaking point but didn’t feel like you had true grounds to fire him (and he’s got that family to support), so you let it continue for months, planning to address it at the next annual review.
Well, when the pandemic struck and the employee was suddenly missing deadlines and claiming his mother needed his live-in care following a COVID-19 exposure, how were you supposed to react? After the Families First Coronavirus Response Act (FFCRA) kicked in, you were risking a discrimination complaint and investigation if you terminated him.
And that didn’t even account for the bad press that would have resulted from his Facebook posts about his firing “because he had to care for his poor, sick mother.” He of course would have neglected to mention the months of unreliable work that preceded it.
So, how can you avoid this HR and PR nightmare?
Tips for Moving Forward
Do your best to hire quality employees, even during staffing shortages. Even in periods of low unemployment, you should never just employ the first person who meets the minimum qualifications.
The current necessity for remote interviews can make the judgment call even more difficult, so designate someone to spearhead the hiring process for each job. If it’s a critical position, consider working with a staffing company or headhunter because the return on investment will be worth it.
Current estimates place the cost of training a new employee near $2,000. That investment is well worth it to onboard someone who fits with your organization’s vision and values and will be a boon to the bottom line. But hiring the wrong person can do far more damage than the initial $2,000. A bad fit can affect other employees’ productivity, morale, and retention. If the position is customer-facing, the fallout can be even more significant.
If you find yourself in the regrettable position of having hired a liability, let the pandemic be a lesson to document consistently and cut ties early when appropriate. Employers are often hesitant to put a performance problem in writing:
- First, it takes time for the manager to create and maintain the disciplinary files.
- Second, there’s a general sense employees should be given the opportunity to improve without having negative notations in their file.
The urge for leniency, however, often doesn’t serve your best interests. Instead, emphasize to employees that a note in their file isn’t the end of the world. It’s simply there to document issues and opportunities for growth so you both can look back and see how far they have come (or not).
Responding to an agency investigation by saying the employee was terminated for poor performance without having any documentation to support the reasoning will leave your company in a very bad position. Documenting performance or attitude issues helps you in the long run by providing contemporaneous evidence of the problem.
A failure to document can trip an employer up at the final stage of the McDonnell Douglas framework used in employment litigation. Under the analysis, the burden begins with the employee to provide a prima facie (or minimally sufficient) discrimination case, shifts to the employer to offer a nondiscriminatory reason for the adverse action, and finally shifts back to the individual to prove the reason proffered by the employer is in fact a pretense (a cover up of its true, discriminatory motive). If the company has documented the problematic behavior well, the employee is highly unlikely to succeed at the final, critical step.
Sometimes, though, a well-papered file isn’t enough to save the day. If a worker is going to be a “bad apple” poisoning the rest of the employee barrel or isn’t motivated to work hard for the company, it’s better to recognize the reality early and cut your losses. That way, you eliminate the possibility of the bad attitude spreading to the rest of the workforce and prevent the situation described above, when a company fears firing a bad employee simply because of poor timing or optics.
Reevaluate How Many Employees You Really Need
Finally, the adage of “quality over quantity” rings true when it comes to a solid, dependable workforce. If you have employees working only one or two times a week, are they really necessary? Can the work be divvied up among the other workers—maybe even resolving complaints they don’t receive enough hours?
Obviously, you need enough staff to cover an illness (particularly in COVID-19 times) or family emergency. It may be time to eliminate unnecessary positions, however, especially if extra people on your payroll means you’re subject to certain state or federal employment laws—e.g., the 15-employee minimum for the Americans with Disabilities Act (ADA).
Kelsey Heino is an employment attorney with the Goosmann Law Firm in Sioux Falls, South Dakota. You can reach her at heinok@GoosmannLaw.com.
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