Problem employee? How to avoid it becoming an even bigger legal problem

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When you own a small business, you handle a lot of things that are both in and out of your wheelhouse.

The things that are in your area of expertise are, not surprisingly, usually pretty easy to deal with. You know how to do the thing that you are hired to do or how to sell those products that you normally sell. If you have a marketing background, then creating ad campaigns shouldn’t be all that tough (and, just maybe, fun.) If numbers are your thing, then doing the books is probably a breeze.

It is when you are forced to handle those things outside of your wheelhouse that things can get tricky. Now, it is true, that one of the interesting things about owning your own business is that it forces you to learn new skills; you have to keep your saw sharp.

But, that said, some things, no matter how much you try to learn them, do not come naturally. As an ex-attorney, I know from experience that one of the most common problems I saw, and an area that brought small business owners into my office too often, was when they “tried to play lawyer.” Oh sure, I understand the impulse. Hiring – or even calling – your lawyer can be expensive.

One of the very common things I saw back when I practiced was entrepreneurial clients who were accused by former employees of wrongful termination. The problem was not that my clients discriminated or let people go unjustly, but more that they didn’t understand the proper process needed to legally do so, didn’t document transgressions, and/or did not communicate well (or at all) with the employee in questions.

All of which begs the question: Just how should you as an employer deal with, and document, a problem employee?

These are the steps that will keep you out of trouble:

1. Issue a warning, in person and in writing. The problem employee should be told the nature of his or her transgression and what was wrong with the behavior in question. You need to document this meeting with an Employee Warning Notice form to be signed by the person giving the warning, and the employee, and also a witness (best practices include having someone witness the warning.) The warning should describe the incident, as well as the time, date and nature of the warning.

2. Build a discipline history. The key to a successful, (mostly) hassle-free discipline or discharge of an employee process is in your consistent communication and documentation. Typically, the four stages of discipline are

  • Warning
  • Probation
  • Suspension, and
  • Discharge

By documenting and building a discipline history for problematic employees each stage of the way, you ensure that your discipline process will be above reproach. What should be documented? Everything, including performance issues, follow-up actions and conversations, employee statements and consequences explained.

This documentation will inoculate you if a wrongful termination suit is ever brought by the employee. It will be proof of the employee’s awareness of the problem and consequences, as well as your unbiased and consistent discipline and communication process.

Obviously, it would be great if there was some sort of app or software that could walk you through the process. Well, the good news is that there is. My friends at HRdirect Smart Apps have a new Progressive Discipline app that contains, not only the Employee Warning Notice form, but also tracks all relevant warnings, follow-up actions, employee and witness statements, and more. It helps ensure that your process is both fair and transparent.

No, disciplining a staff member is never easy, but at least now it can be easier.