In our employee handbooks, we tell our employees how excited we are that they are part of our organization and that they are our most valuable resource. Of course, we also remind them that they work "at will"—that is, we can terminate them at any time, with or without cause, and with or without prior notice.
However, even if an employee is working at will, such an arrangement does not mean that we can terminate him or her at whim. Even the most pedestrian plaintiff lawyer can convert an unfair treatment claim into a viable discrimination or retaliation claim by alleging that a client was fired because of her membership in a protected group (for example, gender, race or age) or because he engaged in protected activity (for example, he complained about harassment or filed a complaint with the Department of Labor).
In my experience, most employers fire employees for legitimate reasons. But even if the reason for an employee's discharge is legitimate, the "when and how" may convey a different message inviting litigation.
Following are the top 10 performance-management mistakes I have witnessed in hospitals and other health care provider organizations:
Failing to notify employees that their jobs are on the line. In health care it's hard to find time to breathe, let alone engage in corrective counseling. Performance management is not at the top of the triage list. But if employees have received no prior notice that their jobs are on the line, they likely will be surprised when terminated. Surprise produces anger, and that often leads to lawyers.
Give an employee the opportunity to improve by providing her with clear notice of her deficiencies before terminating her. If you don't have time to provide her with the notice now, you won't have time for the litigation later.
Failing to confirm the corrective action in writing. Even when managers provide performance counseling, there is a tendency not to confirm the corrective action in writing. Isn't it enough that we have to chart virtually every medical decision? Who has time to document employment decisions, too?
The problem is that, in the eyes of most employees as well as many government agencies, the absence of written documentation means there is no record of notice. A memo to an employee carries a lot more weight than your recollection of a heart-to-heart conversation at a bar after work. The documentation does not have to be a work of art, but it does have to be written, and it should be given to the employee.
Failing to state that the final warning is a final warning. As a general rule, discipline should be progressive. The closer an employee gets to discharge, the more severe the discipline should be. The last step ordinarily should be the final warning, and the manager should make this clear.
In the absence of final-warning language, employees may argue that they did not realize their jobs were on the line, and the discharge may not appear entirely fair if the employee challenges the termination. Plus, if you give employees final warnings, they may start looking for another job. In fact, if they don't, perhaps you should fire them for lack of initiative.
Focusing on the cause of the performance problem. An employee's performance is declining. The manager suspects, perhaps correctly, that the employee is struggling with depression and asks the employee if he is depressed. The employee's spirits are lifted when he realizes the manager may have just given him a perceived-disability claim under the ADA if he is subsequently terminated.
Under the ADA, an employer cannot discriminate based on a current, prior or perceived ("regarded as") disability. One of the unanticipated adverse consequences of the ADA is that kindness may be rewarded with litigation.
This risk is greater in health care where we know more and our humanity cries out to fix the person. But employees are not patients; and managers, clinical and nonclinical alike, need to focus on the performance or behavior, not what they perceive as the cause.
Focusing on intent rather than outcome. Assume you have two billing coordinators. One tries, but makes lots of mistakes. The other does not try, but consistently produces a mistake-free product. You wouldn't give the substandard employee a bonus for caring and fire the stellar employee for not. By looking at extremes, we can see the dangers in focusing on intent rather than outcome. Yet, in our discipline, we often focus on intent ("you're not trying hard enough").
There are three problems with focusing on intent. First, intent is largely irrelevant. Second, you cannot prove it. Third, the employee may feel as though she is being attacked personally. When employees are attacked, they attack back.
Focus on outcome and not intent.
Using labels rather than describing behaviors. When managers find the time to document behavior, they tend to include general labels instead of describing specific behaviors. You might see "bad attitude" or "poor judgment," but what you have is bad documentation.
Using labels without more documentation is problematic for three reasons. First, the label provides no guidance to the employee in terms of what must change. Second, it provides only modest value defensively if the employee challenges his discharge. Third, the label sometimes may sound like a proxy for bias. For example, describing an employee as "rigid," may sound like an age-based stereotype (when, in fact, the employee was insubordinate).
When preparing documentation, drill down. Ask yourself: What did the employee say? What did the employee do? Can you see or hear what you have described? You can't see or hear "bad attitude." You can see and hear an employee blaming others for mistakes, missing deadlines, raising his voice, complaining about customers, and so forth.
Overstating the risks of retention. To justify the termination of a health care employee, employers sometimes explain how the employee's dereliction of duty could have resulted in loss of life. This documentation may be persuasive not only to the Equal Employment Opportunity Commission, but also to the jury in a malpractice claim where the employee's action or inaction is alleged to have caused the patient harm, or worse.
When preparing documentation, we always need to think about how it may apply in both the employment and malpractice forum. "This is the third time you fell asleep on the job" may get you out of the hot seat at the EEOC, but it may add zeroes to the jury's judgment in a medical malpractice claim.
Ignoring the comparators. Do you try to be consistent? I assume most readers would say "yes." Do you believe that we are all individuals and therefore try to accommodate individual needs? Again, I assume most say "yes." If you answered "yes" to both questions, you are internally conflicted.
Consistency usually means treating people the same. However, the more we consider individual circumstances, the more likely we are to be perceived as inconsistent.
Many discrimination claims happen not because of what we do, but because of what we don't do. The employee we don't terminate today for poor performance becomes the comparator when we terminate someone else of a different gender, race, etc., tomorrow for similar deficiencies.
When deciding whether to terminate an employee, always ask, "What's the risk in terminating?" But also remember to ask, "What's the risk in not terminating?"
The risk for inconsistency is particularly great in health care, where differences in treatment may correspond with differences in stature. Fair or not, stature matters, and when stature is considered in determining corrective action, document the same to minimize (not eliminate) the risk that a finder of fact will believe the difference is gender, race or some other protected factor.
Delaying the inevitable. An employee's performance continues to decline. The manager knows she needs to address the problem, but she likes the employee and knows that he has had some difficult personal problems, so she avoids not only the performance issue, but also the employee. The employee figures out that something is going on and consults a lawyer.
One morning, the employee apologizes to the manager for his substandard performance, but claims that it is because of the harassment he is experiencing because of his religion. He offers to provide more detail, but only after he takes the leave to which he is entitled by the Family and Medical Leave Act. This delay creates a window of opportunity for an employee to make a complaint that makes any subsequent adverse action appear retaliatory. Once you have made a decision to discipline (or terminate) an employee, implement the decision. No good can come from delay.
Failing to provide dignity and respect. We know poor bedside matter is often the reason one doctor is sued as opposed to another. The same is true when it comes to terminating employees.
Health care providers are often upset with substandard performers, because they know the risks of their substandard behavior. But when it comes time to terminate, we must pull back and make sure that the employee is treated with respect and dignity. Caregivers need to be cared for, even in the context of the ultimate adverse action—loss of employment.
Failure to show empathy and sensitivity to the employee may result in the kind of hurt feelings that morph into anger, causing the employee to seek support from a third party, whether an attorney or a union.
Author's note: This article should not be construed as legal advice or as pertaining to specific factual situations.
Jonathan Segal, Esq., is a partner in the employment, labor, benefits and immigration group at Duane Morris LLP in Philadelphia.
