How to Deal with Difficult Employees? Don’t Hire Them
By BLR Founder and CEO Bob Brady

The best way to deal with difficult employees is to avoid hiring them, advises attorney Dan Forman. BLR,® founder and CEO Bob Brady says that while Forman is half-joking, he makes the serious point that difficult employees usually start out that way. They do not become different people after they get their ID badges and company e-mail addresses. Their “difficult” traits are usually there for all to see—if only we want to look.

Forman, a partner with the San Francisco law firm, Carlton DiSante & Freudenberger LLP, spoke about techniques for screening out potentially difficult employees during his presentation at the California Employment Law Update held earlier this month in San Francisco.

Forman asked members of the audience to talk about the techniques they use to screen out unsuitable applicants. The audience enthusiastically offered numerous suggestions, some of which are highlighted here.

Questions
•One participant suggested asking, “Have you ever worked for a difficult supervisor?” and listening for clues about how they would behave in your workplace. If they say, for example, “Yes, I had to be at work at exactly 8 o’clock,” you are alerted to a big potential problem. “If they think that having to be at work on time constitutes a difficult supervisor, we probably don’t want them.”

•Another member of the audience, citing the difficulty of predicting whether well-spoken applicants will be successful in the sales positions for which they are applying, suggests asking them about what sales awards they won in prior jobs. “And don’t just take their word for it,” she added. “Ask to see the awards.” She observed that sales people are proud of their awards and the good ones will eagerly bring them in.

•Try to get managers of supervisors who interview applicants to reflect on their general impressions of applicants, “and really listen,” suggested another. He looks for subtle clues that managers may have missed but that could indicate mismatches. Recently, a supervisor noted in passing that an applicant “talked a lot.” Reflecting on it, they agreed that this was a warning signal that should not have been ignored. After discussing it, they realized that this was a very bad sign.

•Ask about problems they’ve had at other jobs. If it’s always someone else who is creating the problem, they may be displaying an unwillingness to take personal responsibility that will probably carry over to your workplace.

•How do they deal with the forms that have to be filled out during the application process? If they get things wrong, or make mountains out of molehills, don’t expect them to magically transform once you’ve hired them.

•Replicate the conditions of the workplace during the interview. One participant said that his organization starts work at 6 a.m., so they interview early, too. “If you get pushback on the phone, they’re not going to be on time.”

•Another member of the audience said she has a manager who “always hired problem employees.” Her colleagues sympathized. They suggested extra interviewing help for the manager, and also making that failure a big part of the manager’s performance appraisal.

Behavior
Forman observed—and I certainly agree 100 percent—that one of the interesting (but not new or novel) things about these comments is the way they center on behavior rather than job skills. If it has been said once, it’s been said a billion times: When a new hire doesn’t work out, more often than not it is a life skill failure, not inability to do the “real work.” Despite the fact that we can test and evaluate for job skills pretty well, most interviewers concentrate on them, ignoring equally important behavioral traits.

Behavior Based Interviewing
In previous HR Updates A Plus Benefits has stressed the need to conduct behavior based interviews. Basically, behavior based interviews require the interviewee to think about their answer as opposed to being able to regurgitate the answer that has been memorized, the answer the interviewee figures the interviewer is seeking.

Our HR Department can supply you with a list of well thought out behavior based interview questions as well, our experienced HR professionals can meet with your supervisors and conduct behavior based interview training.

Some interview preparation and good behavior based interview questions can help in not hiring the “bad” employees.

Randall Barker is the VP of Human Resources for A Plus Benefits, Inc.

(excerpts from 9/29/09 and 10/1/09 BLR HR Daily Advisor)

It’s clear that your supervisors are the first line of defense in preventing lawsuits, but don’t forget, that means they’re the first line of offense as well—the people in position to make the biggest and most costly mistakes.

Your supervisors are good people, well meaning and capable. But especially when they are new, they don’t know how to handle tricky situations like discipline, harassment, intermittent leave, and disability accommodation.

That’s not their fault; you didn’t hire them for those skills. But that leaves it up to you to train them now that you have made them supervisors.

Where to start? You have to begin by blunting some of their eagerness. They will be thinking, “I’ve got to take charge, be decisive.” That’s dangerous until they have been trained. Start supervisors out with some very basic guidelines. Then, over time, give them more details and more latitude in solving problems.

Report, Not Resolve
For instance, at the beginning, tell them, “There are certain situations that are ‘report’ situations, not ‘resolve’ situations. When you hear these phrases, don’t even respond—just come straight to HR.”

•”Accommodation” or a related phrase (”I need an accommodation.” “I can’t do my job because of a physical limitation.” “I need special equipment to do my job.” And so on.)
•”Harassment” or a related phrase (”I am being harassed.” “I am being bothered.” “Joe makes me uncomfortable.”)
•”Leave” or a related phrase (”I need a few days off to care for …” “I need to take FMLA leave …”
You don’t want your new supervisors trying to handle these situations. They could cause a lot of damage, even with the best of intentions.

As you train them, give them information to reinforce their training, like this on discipline:

Act Fairly
•Make sure the incident or behavior warrants discipline under the policy.
•Check that the employee knew and understood the rule that was violated.
•Find out if there were any circumstances beyond the employee’s control that affected what the employee did.
•Determine if the employee knew and understood the penalties for rule violation.
•Make the discipline match the offense; don’t treat minor infractions the same as serious ones.

Act Consistently
•Discipline the same or similar violations in the same way.
•Be sure you’re not coming down especially hard on an employee because of personal dislike or other problems.
•Be sure you’re not looking the other way on violations committed by employees you like or who are especially important to your group.

Act Legally
•Act promptly after a violation occurs, even if you’re just giving a verbal warning.
•Be sure to follow the steps of progressive discipline.
•Document what the rules violation was, when it happened, and what disciplinary action was taken and when.
•Check that disciplinary action was fair and consistent in terms of what has happened with other employees.
•Ask whether a reasonable person could interpret this discipline as retaliation for exercising legal rights.
•Ask whether a reasonable person could interpret this discipline as discriminatory.
•Ask whether a reasonable person would feel that the “punishment” fit the “crime.”

When a Supervisor Needs to Terminate
Supervisors need clear guidance and strong reminders about their HR responsibilities.
1. Know When It Is—and Is Not—Legal to Fire an Employee
•”Employment at will” allows firing employees for any reason not limited by contracts, state laws, or discriminatory or other illegal situations. (However, that doesn’t mean fire people for no reason.)
•Employees can be fired for violations of acts listed in employee handbooks as cause for discharge.
•Employees can be fired for poor performance or other documented reasons. (Employees should be informed of these problems and given a chance to correct them.)
•Employees can’t be fired for reasons such as:
o Discrimination by age, sex, race, disability, marital status, national origin, color, religion, etc.
o Retaliation for safety or discrimination complaints, workers’ comp claims, union activities, time off for jury or military service, etc.

2. Consult HR Before Proceeding with a Discharge
•Investigate and document the situation carefully before acting.
•Review facts and documentation supporting the discharge with HR.
•Be sure any disciplinary steps have been followed and documented.
•Proceed only if HR agrees that discharge is called for.
•Remember that discharging a longtime employee with a previously good record can lead to charges of discrimination.
•Follow HR’s recommendations if the case is not clear-cut.

If you decide to proceed with the termination, find out from HR what you have to cover in the termination meeting.
3. Conduct a Termination Meeting
•Schedule at least 30 minutes in a private setting.
•Have a manager present if called for by organizational policies.
•Explain exactly what’s happening and why.
•Present the facts in a calm, businesslike way.
•Review the violation, prior warnings, lack of improvement, etc.
•Don’t try to make the situation sound better than it is.
•Avoid promises you can’t keep regarding benefits or another job.
•State clearly that the decision is final.
•State the exact date and time employment ends.
•Don’t mention the employee’s age, sex, etc., in any manner.
•Stay calm and firm if the employee reacts emotionally. Anger, tears, and other reactions are common and understandable.

4. Provide Information on Termination Procedures
Arrange to have information and paperwork covering topics such as:
•Eligibility and forms for unemployment compensation
•Any salary, vacation, or other money owed to the employee
•Insurance and COBRA coverage
•What, if anything, other employees will be told
•What, if any, references will be given
•Any outplacement or other services available
•Any documents that must be signed

Arrange for the employee to turn in any company materials or information such as:
•Keys or access cards or other 1D cards
•Company-owned equipment
•Information on current projects and future commitments
•Arrange to block employee computer and building access.
•Have everyone present sign a written record of the meeting.

Final Thoughts
Even though one of the first things we should make sure of with a newly promoted supervisor is that he or she knows how discipline and termination should be handled. However, it seems that these subjects seldom come up with a new supervisor until there is a situation that must be handled, that’s probably way too late.

We suggest that you give this HR Update to every new supervisor, further, we suggest that you discuss this information with all supervisors on a yearly basis. After giving this information to a new supervisor, schedule a definite time when you as a business owner or executive will sit down with the new supervisor and discuss the points outlined in the Update, make sure supervisors know how you want these situations handled.

Do you have questions or concerns about discipline and termination? Don’t forget to call our HR Division, ask for an HR Advisor, and let one of these professionals assist you in your planning for discipline or termination.

It’s our job to help you get back to business.

Randall Barker is the VP of Human Resources fior A Plus Benefits, Inc.

In the past couple of months, several A Plus Benefits clients have been presented with retaliation claims from current or former employees. While we have been successful in defending our clients at no additional cost to them, and have helped our clients prevail in each case, the information below is a good reminder of what can happen.

(BLR HR Daily Advisor – September 28, 2009)
Retaliation suits are the one type of EEOC suit that is increasing, and Attorney Judith A. Moldover says HR managers have an “incredible role” in sparing their organizations the expense those suits invariably bring—even if you “win” them.

Retaliation claims are very fact related, says Moldover, and that makes it especially important that someone with good judgment—like an HR manager—be there to guide management through the case.

They’re Not Over ‘Til They’re Over
By the way, Moldover says, HR’s role doesn’t end when the case ends—you have to keep an eye on management as long as the employee who complained is employed.

Moldover’s comments came at the recent Legal and Legislative Conference of HRNY, the New York City chapter of SHRM. Moldover is with the New York City office of law firm Ford & Harrison LLP.
What Rises to the Level of ‘Materially Adverse Action’?

One of the keystones in a claim of retaliation is that the employee must have suffered a materially adverse action. As a result of the Burlington Northern case, Moldover says, we have a definition for retaliation: an action that would dissuade a reasonable employee from making or supporting a charge. Furthermore, the action need not be employment related.

In the Burlington case, a supervisor constantly told a female worker, “Women shouldn’t do this work.” Then he started saying other things to her with sexual overtones. When she complained, the company investigated and punished the supervisor by giving him a 2-week suspension without pay and making him go to sexual harassment training.

So far so good, says Moldover. But then, the same day the complaining employee was told about how her complaint was resolved, she was taken off her relatively easy forklift job and given a much harder and more physical job. She didn’t lose seniority, pay, or title, but the court did find that the action was adverse.

In another case, an HR manager who reported to top management made a complaint. Soon thereafter he lost all his staff, was moved to another area, and found himself reporting to a middle manager. His new boss said to him, “I don’t know why they sent you to me. I don’t have anything for you to do.” As with Burlington, the manager kept his title and his pay, but the courts found that the action was an adverse action.

However, in another case, a company moved an employee who had complained about sexual harassment away from the harassing supervisor. The new location involved a slightly longer commute. This action was not found to be adverse, but in fact it was judged to be a reasonable response to the complaint.

Moldover offered the following examples of other potentially adverse actions:
• Giving a lower evaluation. Even if the evaluation is only lowered from “superb” to “excellent,” it could be considered an adverse action, especially if pay or promotional opportunities are affected.
• Transferring to a less desirable position. Transferring a person to another position or office could be adverse, although as noted, in sexual harassment cases, a move may be the best thing to do.
• Ultimate employment actions. Naturally, when you take ultimate employment actions, such as firing, demoting, not giving a promotion, or imposing discipline, you are likely taking adverse action.
• Lowering benefits. Removing a significant benefit could also be considered an adverse action, Moldover says.

Counterclaims Could Be More Retaliation
When an employee files a charge or complains about a manager, the manager’s response is often, “I’m going to sue for defamation!”

You probably don’t want to do that, says Moldover. First of all, that case is going to be hard to win, and it’s going to take resources and engender bad publicity. And if that’s not enough, the countersuit itself could be viewed as retaliation.

HR managers have a balancing act to perform in preventing retaliation, says Attorney Judith A. Moldover. You’ve got the manager storming around, saying “I’m going to get this person—can I fire him today?” And you’ve also got a complaining employee who is strutting around thinking he or she is bulletproof.

Find the balance, Moldover says. When you get wind of a manager’s action that might be retaliatory, put the situation in context and try to view it from the employee’s perspective.

Moldover’s comments came at the recent Legal and Legislative Conference of HRNY, the New York City chapter of SHRM. Moldover is with the New York City office of law firm Ford & Harrison LLP.

Context Matters
With retaliation, context matters, Moldover says. Take, for example, a schedule change. One person might not care at all, while another might care a great deal. For instance, a single mother with a carefully arranged daycare schedule might find a schedule change adverse if she has no other options.

Similarly, someone with asthma might find a change of workstation adverse if he or she can’t work in certain atmospheres.

Moldover’s Most Important Rule
The most important rule for fighting retaliation is to insist that HR have prior review of any action proposed against an employee who has filed a charge or lodged a complaint.

Decision makers often want to act fast and be tough, but you can’t let that happen, says Moldover. You have to get wind of any planned change so that you can talk it through before it happens.

Don’t let a manager take an adverse action or what might be considered an adverse action until you are convinced that the decision maker can explain the basis for the action. That’s not just termination, but any form of discipline, lower evaluation, etc., says Moldover.

Ask yourself these questions, she says:
• Will a jury buy this explanation?
• Why are we doing this to this employee?
• Why now?
• Are there alternatives?

How HR Can Help
Moldover recommends the following for HR managers:
• Delay action pending investigation. Acting too fast, before you are all on the same page, can have disastrous consequences in court. It may take a few weeks, but you’ll be able to take adverse action secure in the knowledge that you can support the decision.
• Deliberate with decision makers. Make sure that you are there when decisions are made, and make sure that all present understand the reasons behind the adverse action.
• Don’t deviate from precomplaint practice. Be cognizant of your past practice. When you deviate from it for one employee, you will certainly look as though you are retaliating.

For A Plus Benefits’ clients
As always, we encourage you to contact one of our HR Professionals at A Plus Benefits when you find it necessary to deal with the kind of situations that are outlined above. We have found, over the years, slowing down a disciplinary process by a few hours and discussing the situation in detail can often reveal a better course of action and yield a far better outcome.

Randall Barker is the VP of Human Resources for A Plus Benefits, Inc.

“Many companies operate with a feudal mentality,” says Jon D. Groussman. They do a great job of protecting their employees “inside the castle”—think how difficult it is to get past a security guard or receptionist. However, they neglect their employees’ safety when they “leave the fortress and cross over the moat.”

It often takes a tragedy to make companies address the risks of business travel, Groussman says. He is president and chief operating officer of CAP Index, Inc., a crime forecasting company.

Personal Crimes Are the Most Common
Personal crimes, such as assaults and robberies, are the most common types of incidents that business travelers encounter, according to Groussman.

Often, companies make hotel and travel decisions based solely on price, rather than evaluating factors such as “the crime rate of the neighborhood where the hotel is located, basic security safeguards utilized at the property, or transportation after dark,” he says.

Ironically, employers go to great lengths to protect company-issued mobile devices and the data stored in them, but they aren’t proactive about ensuring the safety of the employees who carry those devices, Groussman laments.

Prevention Tactics
When making travel plans, employers should consider location and assess the potential risks to employees, according to Groussman.

He also recommends researching a vendor’s services. “Hotels that offer safety features such as card key systems and controlled access (i.e., exterior doors are locked at a certain time) are significantly safer for business travelers,” he says.
When making travel arrangements, Groussman suggests asking questions, such as:

• Does the hotel conduct background checks on all employees?
• What types of security measures are in place?
• Does the hotel use closed-circuit television?
• What types of problems has the hotel had that might cause concern?
• Does the hotel meet the security recommendations of the American Hotel and Lodging Association?
• Are all individual franchise locations required to adhere to the corporation’s safety standards?

Groussman advises employers to educate business travelers about safety procedures they can follow to increase their own safety. He suggests that you provide your travelers with the following commonsense tips to reduce their potential exposure to crime:

• Get directions in advance.
• Do not leave valuables in plain sight in your motor vehicle.
• If arriving at a hotel in the evening, park as close to the front entrance as possible. If this is not possible, ask for an escort.
• Park under a lamp pole or lighting fixture.
• Ask for a room close to the front desk.
• Avoid late-night travel if you can.
• Use the buddy system when possible.
• Trust your instincts.

Groussman also recommends providing business travelers with an emergency company phone number in case they need some type of assistance, have to report an incident, or become ill. That could be a hotline or an after-hours number for a manager or HR director, he says.

Protect Your Most Important Asset
“The bottom line is that employees are a company’s most important asset,” he says. “Employers need to take steps to protect that asset, not just when employees are in the office but when they travel for business, as well.”

Detective Kevin Coffee provides his recommendations for selecting hotel rooms, and the Hotel and Lodging Association shares its hotel safety tips.

Coffee operates a consulting service, Corporate Travel Safety LLC. He offers the following suggestions for picking out a safe hotel room:

• Avoid ground level rooms with windows or sliding doors opening at ground level.
• Choose a room facing an interior courtyard rather than a parking area.
• Choose a room on a lower floor, as many fire department vehicles can’t reach rooms above the sixth floor.
• Consider a room near the elevator. It is generally safer; however, it may be noisy.

In the Room
• Keep your key/card handy in case you have to leave quickly during an emergency.
• Lock the door and secure the bolt and clasp or chain. If the chain is loose, twist it before securing.
• Check fire exits. You don’t want to be wondering about which way to go when you are awakened in the middle of the night.
• Get two business cards from the front desk that show the hotel phone number and address. Put one by the phone in the room and put the other in your wallet so there will never be a problem getting back to the hotel.

AHLA Guest Safety Tips
Finally, here are 10 basic tips from the American Hotel and Lodging Association:

1. Don’t answer the door in a hotel or motel room without verifying who it is. If a person claims to be an employee, call the front desk and ask if someone from the hotel staff is supposed to have access to your room and for what purpose.
2. Keep your room key with you at all times and don’t needlessly display it in public. Should you misplace it, notify the front desk immediately.
3. Close the door securely whenever you are in your room and use all of the locking devices provided.
4. Check to see that any sliding glass doors or windows and any connecting room doors are locked.
5. Don’t invite strangers to your room.
6. Do not draw attention to yourself by displaying large amounts of cash or expensive jewelry.
7. Place all valuables in the hotel or motel’s safe deposit box.
8. When returning to your hotel or motel late in the evening, be aware of your surroundings, stay in well-lighted areas, and use the main entrance.
9. Take a few moments to locate the nearest exit that may be used in the event of an emergency.
10. If you see any suspicious activity, notify the hotel operator or a staff member.

Randall Barker is the VP of Human Resources for A Plus Benefits, Inc.

Keys to Motivation (plus a really cool interview question)
HR Morning September 17, 2009 by Jim Giuliano

In these tough times, if your organization is one of those asking employees to do more for less, it’s especially important consider what’s going to motivate them.
The best parts of these motivational tools — excerpted from the Harvard Business Review — is that they don’t cost anything and just about any manager can implement them:

• Give feedback, lots of it. But don’t confuse feedback with backslapping. In uncertain times, employees want you to be dead-on honest and thoughtful.

• Offer as much professional development as possible. One mistake managers make: Setting a career path for an employee without fully asking the employee about it. Try not to assume you know what the employee wants. At the very least, employees will be motivated by knowing you care what they think.

• Say “thanks.” Money and benefits are tight, so if you can’t shower them with cash, at least shower them with praise when they deserve it. And practice the two kinds of thank-you: (1) For doing the everyday job at a high level. (2) For going above and beyond the everyday job.
Executives need to take a walk and interact with their employees. Employees worry about what is happening when the organization’s executives become invisible.

• Don’t assume your employees know what is going on. In difficult economic times never assume that your employee know what is “going on” with the company. The old adage No News is Good News is never motivational. Be frank about the challenges the company may be having and make an extra effort to celebrate positive developments.
And the cool interview question:

• Ask employees (and applicants) what they’d do with themselves if they had all the money they needed. OK, some people are going to say “nothing” — that’s a given. But some others will tell you what their true passions are. Maybe you won’t be able to accommodate them, but you’ll know what motivates the person and how you can best adjust the tasks at hand to match the passion. Example: If someone says, “I’d write a book,” you then know that person would be happier doing work that involves writing, even if it’s only routine reports.

Randall Barker is the VP of Human Resources for A Plus Benefits, Inc.