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Susan M. Heathfield

Be Safe - Not Sorry

By March 10, 2009

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The Wall Street Journal made several key points I'd like to share. Fear of losing costly lawsuits is making employers hesitant to fire employees who are underperforming.

And, human resources professionals, who must monitor and lead the process, yet don't have to work directly with an underperforming employee, are often blamed for not letting non-performing employees go sooner. Indeed, some of these fears and concerns are well-founded.

Laws about retaliation by employers fill the books these days. Passed to protect workers, these laws are now protecting underperforming employees and making firing an employee much more difficult, but doable if you follow the appropriate steps.

Retaliation lawsuits make up thirty percent of the cases reviewed by the EEOC. Age-related lawsuits are recently up eighteen percent and, in a layoff situation, employers are responsible for proving no disparate impact on employees over age 40.

This becomes especially important now when some Boomers are retiring, others are scared to death to retire with their savings and 401(k)s in a shambles, and a rising unemployment level. Many businesses are freezing hiring due to economic uncertainty which leaves even fewer openings for the job searchers.

Don't be afraid of being sued. Despite the fact that it may seem some days that lawyers are conspiring to sue employers for the smallest offense, and, believe me, some are. This is how they make their living. Just do your homework. Make sure your managers are well-trained about documenting performance for each employee. Note that I did not say just underperforming employees, I said, each employee.

Then, follow up with employees who are not performing. Coach and counsel, try to help the employee improve, and document each of these steps. If all else fails, document a formal improvement plan with the goal of really effective communication with the employee. Do these steps correctly, over a period of time, and you will know, both legally and ethically, that you did your best to help the employee succeed.

Will you never be sued? Undoubtedly, if you are in business long enough, you will be sued. In the United States, particularly, anyone can sue anyone for just about anything, any time. But, you can mitigate the potential and the damage. Identify early that an employee is not performing. And, do something about it - quickly.

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