Winning Strategies for Employers to Effectively Deal with Marginal Employees
The Goldstein Law Firm
June 2011 Newsletter
By: Charles H. Goldstein, Esq.
“Winning Strategies for Employers to Effectively Deal with Marginal Employees; The U.S. Supreme Court Rules that Arizona Can Penalize Businesses That Employ Illegal Aliens – How Does This Decision Affect You?; Will the California Supreme Court Ever Decide the Brinker Case and Clarify What An Employers Legal Obligations are to Provide Meal and Rest Periods”
I. You Do Not Have to Tolerate Marginal Employees in a Tough Economy – This is a Time to Operate Lean and Mean:
Many employers have employees who are “marginal performers”. Marginal performers add nothing to the profitability and/or efficiency of a company and/or organization and often detract from efficiency by lowering the performance bar for all employess. Marginal employees generally exhibit some or all of the following characteristics:
- Want to avoid being held accountable for his or her actions;
- Blame any work problems (if he or she admits any exist) on lack of training, some form of discrimination and/or blaming co-employees whom the marginal employee believes are treated more favorably;
- Have a false sense of entitlement because he or she believes that you owe them a job;
- Resist all authority and desire to thwart the exercise of authority;
- See every attempt by you to hold them accountable as an act of retaliation and/or unjust/unfair treatment;
- May resort to claiming health problems when you attempt to hold them accountable because of perceived legal protections from discipline and/or termination afforded to employees while on various forms of medical leave; and
- Attack their manager and/or supervisor with charges of discrimination, unfairness, and impropriety when confronted with being held accountable.
Winning Strategies for Dealing with Marginal Employees
A winning strategy you can use for dealing with the marginally performing employee involves the completion of a four (4) step process:
(1) Establish a measurable, objective and reasonable performance standard for the marginal employee to meet within a reasonable period of time;
(2) Clearly communicate to the marginal employee the performance standard that you want the marginal employee to meet;
(3) Clearly document all conversations with marginal employees, poor performance events, and/or any discipline imposed on the marginal employee as result of his or her failure to meet the reasonable performance standards; and
(4) Secure knowledgeable legal counsel early when dealing with problematic employees who are prone to threatening and taking legal action because they cannot accept blame for their own self created problems.
In order to remove a long term marginally performing employee, you must be willing to try to get the employee to improve his or her performance to an acceptable sustained level, rather than assuming that this would be a hopeless task.
One of the challenges in the process is first establishing a “measurable, objective, and reasonable performance standard” for the marginal employee to achieve. Some employee classifications, such as “Sales Representatives”, are easier to establish measurable performance standards for than others. In establishing a reasonable performance standard, you must ensure that the employee is properly trained to perform the work. Frequently marginal employees who are subsequently terminated from employment after they fail to perform at an acceptable, sustained level of performance, assert that they were never “properly trained by the employer” to perform their job duties and/or that you treated them differently than other employees whose performance was no better than their performance. You should make certain that the marginal employee has the proper and necessary training to perform his or her job at a level which meets and/or exceeds your performance standards and that the marginal employee has been treated the same as other employees performing the same type of work.
The “measureable, objective, and reasonable performance standard” should be clearly communicated to the marginal performer in simple language, both orally and in writing. You should determine what level of job performance you expect from the marginal employee to meet and/or exceed. When orally communicating these performance standards to the marginal employee, you should have a management witness present who can make contemporaneous written notes of the event. You should avoid using the time when you are communicating performance standards to the marginal employee as an opportunity to “blame” the employee and/or to “accuse” the employee of being “lazy”. Instead, you should focus your attention on communicating a reasonable set of job expectations with agreed upon goals and timetables for reaching those goals.
You should never have to “settle for less” than an employee who wants to do their best to perform. There is no reason why you should accept the substandard performance of marginal employees in a tough economy or at any time. Employers who remove marginal employees from the workforce can improve their company’s profitability and efficiency.
II. “The U.S. Supreme Court Rules that Arizona Can Penalize Businesses That Employ Illegal Aliens”
A new U.S. Supreme Court decision Chamber of Commerce v. Whiting (October 2010 Term) gives states the power to enact laws penalizing employers who employ individuals illegally in this country and fail to use the federal government’s e-verify system to check on the immigration status of all new hires. In a closely watched 5-3 decision, the Court concluded that Arizona can constitutionally allow the state to revoke the business licenses of businesses in the state that knowingly hire illegal aliens. In a surprising move, the Court rejected the argument that federal immigration laws pre-empt contrary state action because U.S. law already prohibits employers from knowingly hiring persons unlawfully present in this country.
How Does This Decision Affect You?
If you are a California employer, who has operations in Arizona you have to be particularly mindful of the immigration status of the employee you hire and continue to employ. You should make certain that you have taken the following actions: (1) use the e-verify system to screen the immigration status of all new hires; (2) make certain that you have I-9 Forms for all of the employees you hire and continue to employ; and (3) if you have reasonable suspicion to believe that you are employing an individual who has no right to work in the U.S., you should request the employee to provide you with proof within a reasonable period of time that he or she is lawfully entitled to work in the U.S.
We believe that Arizona authorities will aggressively enforce this law. Therefore, as a matter of sound business and legal practice, regardless of which state(s) you operate in, you should make certain that: (1) everyone that you hire is legally entitled to work in the U.S.; (2) that you e-verify the right of all new hires to work in the U.S.; (3) that you make certain that you have I-9 forms for all employees who you hire; and (4) that you make certain that you have updated immigration documents for employees who have work permits that periodically expire.
III. Will the California Supreme Court Ever Decide the Brinker Case and Clarify What An Employers Legal Obligations are to Provide Meal and Rest Periods
The case of Brinker Restaurant v. Superior Court (Hohnbaum), California Court of Appeals, Fourth Appellate District, S166350 has been before the California Supreme Court since August 2008 and still has not been decided. As a result, Employers must still act at their peril when applying the provisions of California Labor Code sections 512 and the Industrial Welfare Commission’s Wages Orders.
In Flores v. Lamp Plus, Inc. (Cal. App. 2nd Dist. 2011) the Second Appellate District of California issued as ruling favorable to Employers that adds further support to a long line of appellate court rulings that hold that employers meet their obligation to provide a thirty (30) minute unpaid meal period and paid rest period if they ensure that employees are free from the employer’s control for thirty (30) minutes during the day.
The Court went on to state that the mandatory language of the Labor Code and the Wage Order does not mean that employers must “ensure” that employees take meal breaks, but must rather only provide breaks. The Court rejected the plaintiff’s argument that employers must “ensure” that employees take their meal breaks and rest period and found this argument to be “utterly impractical”. Hopefully, the California Supreme Court will adopt the logical and plain sense reasoning now contained in a multiple of lower court decisions and conclude that Employers do not have to make certain that employees take their meal and rest periods, but only have to make sure that employees have the opportunity to do so and are not prevented by the employer from doing so.
How Does This Decision Affect You?
Unless the Brinker case is decided by the California Supreme Court, the legal principles set forth in Flores v. Lamp Plus, Inc. would not prevent your being held liable for violating the Labor Code and Wage Orders that relate to meal and rest periods.
However, the Flores v. Lamps Plus, Inc. decision does provide the following guidelines for employers to be in compliance with the meal and rest period provisions of the Labor Code and the Wage Orders; and should be implemented as best business and legal practice, regardless of how the Brinker case is decided:
- Your employee handbook should include a policy requiring employees to take their meal and rest periods.
- You should have a written policy that employees are to notify you if they do not take their meal and rest periods.
- Meal periods should be logged into your time keeping system, but avoid automatic deductions that can be problematic.
- Employees who willfully do not take meal and/or rest periods should be subject to progressive discipline, up to and including termination.
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