To Manage Performance, or Not To Manage…That is the Question!

By Becky Regan

The high-maintenance employee. You know him….

If he’s currently working for you, you’re regretting the day you hired him.

And you probably don’t know where to begin in terms of managing him to perform, or managing him out of the organization. So you haven’t done anything, except hope that he transfers out of your department or quits.

We’ve all experienced the employee who challenges our managerial authority and put so much negative effort into NOT WORKING. This employee frequently is an authority on employment law and knows and understands the complexities of how he can become “protected” under current State and Federal mandates.

So what do you do? You’ve got several options:

  • Do nothing, hoping he’ll leave on his own.
  • Fire him because he’s just not working out as an employee (this approach will just about guarantee a wrongful termination lawsuit against your company.
  • Use progressive discipline to correct his job performance, or manage him out of the company.

It isn’t easy to do. But the rest of your staff has to live with this individual at work every day too. Don’t you think that they question why you’re not managing him? What kind of a message does it send to the rest of your staff? Managing difficult employees is one of the biggest challenges you’ll ever face as a manager. But if you effectively handle difficult or non-performing employees, you’ll gain the respect of the rest of your staff, and others in the company will regard you as a manager who treats employees fairly and consistently and has high performance expectations for himself and staff.

You want to approach this scenario in a methodical manner that will generate desired results while protecting your company from adverse legal action. Especially in the state of California, managing employees is hard because the state’s employment legislation is stricter than Federal employment legislation, generally. It is the most challenging state in the nation for employee relations, and if you can effectively manage staff in California, you can do so anywhere in the country.

Okay, now you’re motivated and ready to take on the challenge. But how do you start? By identifying the performance problems in an objective, quantifiable way. Even if you’ve never addressed performance issues with the employee before, this is how you begin. Think about the employee’s performance while they’ve worked for you. Can you show substandard performance in terms of output? In terms of how they’ve handled certain situations incorrectly? In terms of inappropriate behavior in the workplace they’ve demonstrated? Excessive time away from work for either tardiness or absenteeism?

So this is how you begin. Create some quiet time and reflect on the employee’s performance history. Talk with your human resources professional about the situation and create a strategy to manage the employee. Jot down dates of occurrences, what happened, why it was a problem, and what your expectations are for future performance. You need to write this as a formal warning in the first step of progressive discipline, and explain to the employee what is happening, why it is happening, what you expect him to do to correct his behavior, setting the timeframe in which you expect to see improvement.

At the bottom of the last page of the written disciplinary warning, you should add language such as: “further occurrences of this type of behavior during the term of the disciplinary warning period may lead to further disciplinary action taken against the employee, up to and including termination of employment.” The employee has been put on official notice of his performance problems, and the burden of responsibility shifted to him, for him to accept and take responsibility for it, or for him to reject it and begin the end of his employment relationship with your company. Remember, it’s not personal, it’s business.

During the disciplinary meeting with the employee, there should be one other person present to witness the discussion in case of any discrepancies in relating the conversations after the fact. This can be a human resources representative, or another supervisor. You should NEVER have a meeting without a third party present. You need to get the employee’s feedback on the performance issues that are included in the written warning, and make sure they understand why they are being put on disciplinary review. The employee receives a copy of all written warnings during the entire progressive disciplinary process.

If the employee’s performance has not improved as the end of the disciplinary period approaches, or if further infractions of the warning occur during the term of the warning period you should escalate the disciplinary process to the next level. This is a second level warning, which is ramped up and more serious in tone than the first level warning. The employee must understand that his job is in jeopardy at this stage, and corrective behavior is required for continued employment.

Again, this warning is documented in clear, concise language. The employee meets with you and the third party representative again, and during the course of the exchange you make sure that the employee understands that they are facing involuntary termination of employment unless they change their behavior. You elicit their response, make certain that they understand the gravity of the situation, and give them a copy of the written warning.

At this time in the disciplinary process, some employees may quit because they don’t believe that they can overcome the performance issues they’re facing. Others may seek protection under employment laws or mandated benefits, such as Worker’s Compensation, Americans with Disabilities Act, etc. It is critical to consult with an employment attorney at this stage to ensure that you are in compliance with legal statutes and regulations.

Another option is to offer the employee a separation agreement. Generally used for mid to higher level staff, this is an offer of separation pay for signing off on a release that ensures the employee won’t bring adverse legal action against the employer. This can be a useful tool in many situations, and benefits the employee through the provision of pay to financially bridge them to their next job. It can be a cost-effective tool for the employer through minimizing their legal exposure in a termination case.

If you don’t opt to utilize the separation agreement, and if the employee’s performance still is not improved as the end of the second warning period approaches, then termination of employment becomes a reality. Also, if there are any infractions on the employee’s part for performance issues that they are currently on written warning for during the second warning period, it serves as grounds for immediate termination.

Your goal during the termination is to be prepared, and to allow the employee to leave with dignity. You should have a final piece of paper that states the employee is being terminated, information about why they are being discharged, and how their benefits will be affected. You should also have their final paycheck to present to them. The meeting should be short and to the point with a third party present. You can either walk the employee to their workstation or office, and allow them to pack up their belongings at that time, or return after hours to do so.

Most employees want to succeed and be valued members of a company. This is the good news. But in any organization, there are a few that need to correct their behavior, or leave the company. It is your responsibility as a manager to manage your staff, and progressive discipline is a valuable tool for employers to use to accomplish these objectives. Ultimately, it’s a win-win for all: the employee moves onto another employer where they may succeed, you and your staff are more productive as a result of removing a negative influence from the workplace. Though it’s a difficult process, it is worth the effort.

Remember to consult with a human resources professional and an employment attorney as you work through each step of the progressive discipline process. They will help you follow the steps you need to succeed while navigating through the technicalities, both legal and managerial as you work through the process with your employee.

Disclaimer: Rebecca Regan is not an employment attorney, and the information contained in this article does not represent legal advice. She is an experienced human resources consultant who has successfully handled hundreds of terminations in the workplace. Please consult with an employment attorney every time you plan to take punitive action against an employee up to and including termination of employment.
© 2010 Regan HR, Inc.

Becky Regan, M.A., CCP began her own consulting practice in 1995, Regan HR, Inc. to provide human resources consulting services to businesses in California. Her work as a consultant includes the full spectrum of HR technical expertise with an expertise in compensation studies. In addition to consulting with clients, in 2008 Becky expanded her practice to include online marketing of her custom HR products and established coaching programs for developing HR professionals. For more HR tips and to receive her FRE*E special report, visit