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‘Performance Management’ Category


Reasonable Accommodation

I have an employee who has an on-going medical condition and is protected. We have downsized to a small firm of 9 and need each professional to be able to cover the most ground possible-optimally (w/o quality compromise).

Lately said employee has been getting sick again and at crucial moments when he/she has been needed because of un-moveable deadlines. It causes stress to her/his team and leaves an unaffordable gap for the time he/she is gone.

The principal gets very annoyed .
I point attention to “what are the needs of the business” in an effort to fram it that way and explore legal options handling this situation. My style as HR and general support is usually to find a solution to the ned first–like hire part time to fill the skill need and then come up with a solution for an unpredictable employee.

There seems to be a reluctance to take consequential action. The company really cannot afford to”carry” someone” and this person really cannot be expected to “stretch”. I would appreciate any thoughts on this.

An employer with only nine workers is not covered under the two main federal laws that would apply to this situation, the ADA and FMLA. The Americans with Disabilities Act (ADA) applies to employers with 15 or more employees. The Family and Medical Leave Act (FMLA) covers employers with 50 or more employees.

Depending upon the state workers’ compensation law, a covered employee is entitled to wage assistance but the employer may not have to hold his job if doing so would cause significant hardship to the employer. Some states may permit the termination of the employee but require the employer to rehire him once he is able to return to work; while other states prohibit the termination of an employee on workers’ compensation.

Also, some states have adopted personal leave of absence laws in addition to federal legislation. Most of these laws don’t apply to small employers.

Without knowing why the employee is considered protected, it’s difficult to provide sound feedback but here are some things to consider.

Unless the employee’s absences are protected by the ADA, FMLA, worker’s compensation, or state personal leave laws, at-will employees can be terminated at any time as long as the reason is not illegal. Absenteeism and sub-standard work are legitimate causes for disciplinary action including termination.

It’s best to follow policy or established practice. If an employee in the past with a short term disability i.e. medical condition causing absences or sub-standard work was given accommodations and continued his employment then the same entitlement should be given to this worker. However, if this worker’s absences are more excessive and the hardship to the company is more significant, disciplinary action is warranted.

If no policy or past practice exists, it’s best to adopt a clear policy on how to handle this matter now and for future occurrences. The policy depends on what the company can afford to offer. Sample personal leave policies can be found on the internet and edited to meet company standards.

Aside from offering the employee a short term personal leave and, again, assuming no federal or state laws apply, an option is to have a discussion with the employee concerning her absenteeism and quality of work. Inform the employee that her work performance is not up to company expectations and future performance issues will lead to disciplinary actions. Be sympathetic to the employee’s personal condition but be clear that accommodations have already been made and his work still continues to suffer. Follow progressive discipline. If the poor performance continues after warnings then termination would be warranted.

Hiring a part time employee to assist with business need due to the employee in question being unreliable is only masking the problem. Yes, doing so will help the team and overall business short term. However, not dealing with the actual issue will only prolong the situation and set a standard for other employees. It’s best to address the situation now and establish guidelines for the employee’s future with the company as well as other employees who may find themselves in similar situations one day. Hope this helps!


Employee not working out

I have an employee who is slacking on her job, she is a good worker when I am around, but since I cover three shift I can not always be on her shift to make sure she does. I have reminded her several times of the things she “forgets” to do.Can I cut her hours and move her to a fill in position? will she be able to claim partial unemployment benefits?

It can be very frustrating as a manager to know that your employee has the potential to be a good worker but doesn’t have the professionalism or maturity to be at her best without you micromanaging her. Following progressive discipline ensures the employee has been made aware of her poor performance and given the opportunity to improve it prior to being given a severe discipline like demotion.

Progressive discipline provides responses to employee performance or misconduct increasing in severity with each occurrence.  Generally, progressive discipline includes counseling or verbal warning then a written warning followed by a suspension or final written warning and, ultimately, termination. With any type of disciplinary method the employee must be informed of the specific behaviors that constitute the poor performance or misconduct. In order for progressive discipline to be effective the employee must be involved in the process and clearly understand the corrective actions that must be taken.

Since the employee has been verbally warned of her negligence, maybe consider giving her a written warning outlining the tasks she continually forgets to complete and what is expected of her going forward. Be sure to include that continued poor performance will lead to further disciplinary actions including termination. If your company doesn’t have a standard format for written warnings, a basic memo format will work fine. Meet with the employee face to face to discuss the written disciplinary action. In this case, you should also mention to her that you’ve noticed the good work she does when you’re on shift with her and that you expect the same conduct will continue on other shifts as well. It’s important to recognize good behavior as well as engage the employee in the steps to be taken to improve her performance.

Once a written warning has been issued and the employee continues to fail to meet job expectations then a more severe discipline is warranted. Typically, it’s not recommended to continue the employment of a worker who is not successfully performing her job. If she can’t meet job expectations during a full time shift, why would you expect her to perform differently in an on call position? In certain industries like retail or food service, being demoted to an on call or fill in position may be considered part of progressive discipline. It can sometimes serve as a warning to an employee and the employee will only be offered more shifts as her performance improves. Again, this is not typical but sometimes used in certain industries.

Regulations surrounding unemployment benefits vary by state. Generally speaking, an employee whose hours have been reduced to part time would be awarded partial unemployment benefits. An employer in your situation could argue that the reduction in hours is part of a disciplinary procedure since the employee’s performance has been sub-standard. The determination for eligibility would then be up to the state representative.

February 17th, 2014, 7:29 PM |  Posted in: Human Resources Management, Performance Management |
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suspending an employee

Can you suspend an employee in Texas without pay if they have broken a policy?

Yes. In the absence of a contract to the contrary, employers are permitted to impose disciplinary measures such as suspensions and pay reductions as they see fit. As long as these actions are not taken in a discriminatory manner, meaning they were not taken on the basis of race, gender, age, etc., they are perfectly legal.

Additionally, employers must be careful to ensure minimum wage requirements are met, when reducing the pay of a nonexempt employee.


Disciplinary Actions

Is it legal to suspend a non exempt employee without pay, and then when they return to work dock their pay for an additional 60 days?

Yes, in the absence of a contract to the contrary, employers are permitted to impose disciplinary measures such as suspensions and pay reductions as they see fit. As long as these actions are not taken in a discriminatory manner, meaning they were not taken on the basis of race, gender, age, etc., they are perfectly legal.

Additionally, employers must be careful to ensure minimum wage requirements are met, when reducing the pay of a nonexempt employee.


Employee warnings

In Virginia if you write up an employee and he refuses to sign, but he brings the paper back the next day, writes a disagreement summary and then signs, is this grounds for dismissal? How many times do you need to write up an employee before you can fire him legally?

Most employers permit employees to write a statement to add to any disciplinary write-ups, and it is a good idea to do so, especially if there is a disagreement about what has taken place. By getting the employee’s version of events in writing, you will know exactly what they are alleging, and this could prove invaluable in the event of a discrimination claim or lawsuit. This would not generally be considered grounds for termination.

As to how many warnings you must give, there are a couple of factors to consider. First, if you are an at-will employer, you may terminate an employee for any reason or no reason, as long as there is no violation of law. So while you can terminate for poor performance or bad conduct, you cannot legally terminate because of race, gender, age, etc.

Secondly, you will want to review any employment contracts or collective bargaining agreements and be sure to adhere to the procedures contained therein.

Finally, you must adhere to your own disciplinary policies. Some employers establish policies that essentially guarantee an employee several warnings before termination can take place. If you have such a policy, you will need to provide the designated number of warnings.

Hopefully, your disciplinary policy contains language that allows the employer to skip one or more steps in the process; if this is the case, there is no legally- mandated number of warnings that must be given.

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