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Dealing with an Unproductive Employee

Nearly every company with more than one or two individuals is faced at some point with an unproductive employee. Dismissing employees is costly and can leave employers open to adverse legal action. However, sometimes it is the only viable alternative. Here are some things to help you determine the most constructive course of action for dealing with an unproductive employee.

Characteristics of Unproductive Employees

One recent study from Gallup found that less than one-third of workers are actively engaged. The rest are "phoning it in" to some degree. Such employees may be nominally productive while demonstrating signs of disengagement such as coming in late and leaving early or taking a "not my job" attitude toward tasks outside his or her explicit job description. If you sense that an employee is not fully engaged with his or her work, it's essential to discover the sources of his or her disconnect sooner, rather than later. Don't wait for a formally scheduled review.

A candid discussion may uncover challenges that have little or nothing to do with the job, such as seriously ill children or family members. In such cases, cutting the worker some slack, at least in the short run, may resolve the issue. On the other hand, an unproductive employee may have legitimate complaints about being overworked or underappreciated. Addressing these types of circumstances often involves making changes in the way you do business rather than letting a disengaged worker go.

Dismissing Unproductive Employees

If other measures have failed, dismissing unproductive employees may be the only available recourse. Many states have at-will statutes on the books that allow employers to dismiss workers with or without notice. When the decision has been made to dismiss an unproductive employee, conduct the dismissal in person. Remote employees may be dismissed by phone. Under no circumstances should employees be dismissed by email or by public announcement. Employers should also exercise due diligence to minimize the risk of adverse legal action.

Lay the Groundwork: While you may be able to dismiss employees without notice, barring extreme circumstances (such as a criminal activity), doing so is not a good strategy. Instead, lay the groundwork by spelling out deficiencies in the employee's performance and setting reasonable limits (such as 30, 60, or 90 days) within which you expect to see substantial improvement.

Prevent Constructive Dismissal Lawsuits: Taking corrective actions, such as a reduction in pay or reassignment, can be a legitimate means of dealing with unproductive employees. However, employers must avoid actions that may be interpreted as retaliation or worse, taking punitive actions designed to force an employee to quit (to avoid paying unemployment insurance).

Avoid Wrongful Termination Lawsuits: Employers cannot dismiss workers for refusing to perform dangerous tasks or illegal acts. Likewise, employers leave themselves open to possible adverse legal actions by taking different approaches to employees who present similar unproductive performance patterns. For instance, if both Mary and Bobby both habitually arrive late, but you fire Mary while Bobby is allowed to stay on (even if he is reassigned or demoted), you may find yourself on the wrong end of a wrongful termination suit filed by Mary.

Execute the Dismissal Properly: Depending on state law, you may be required to provide written notice of termination before dismissal, including the reasons for dismissal. You should also be prepared to provide paperwork for COBRA insurance, pensions, stock options, or related plans. Dismissed employees should also receive a check at the time of termination for any monetary compensation, including paid vacation time, to which they are entitled. Finally, be prepared to deactivate the dismissed employee's access to the company network and physical plant or offices, and arrange to retrieve company-owned equipment, while allowing workers the opportunity to remove personal files from computers and personal effects from their work areas.

When to Consult an Attorney

In many cases, letting unproductive employees go does not require the services of an attorney. When employers have established fair disciplinary and dismissal policies, and follow them consistently, dismissing workers is unlikely to generate adverse legal action.

On the other hand, when dealing with employees who belong to protected classes, it is almost always advisable to consult with an attorney before taking serious disciplinary action, including dismissal. Failure to do so could lead to mistakes in the dismissal process that leave your company open to charges of discrimination.

If you're faced with the difficult decision of letting an unproductive employee go, don't go it alone. Giddens & Gatton Law, PC, our motto is expertise with compassion. We understand the needs of employers because we're business owners too. Give us a call and let us provide you with the guidance you need to make the right decision for all parties involved. 

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