Wisconsin
Lawyer
Vol. 81, No. 2, February
2008
Act Within the Legal Framework for All Personnel Matters
by Robert E. Gregg
Know the legal framework you must act
within. Although Wisconsin is an employment-at-will state, there are
still a number of laws that affect what
you can do and especially what you should or should not say. Especially
avoid
comments that could be interpreted as discriminatory under the equal
employment opportunity laws. Have you done anything to eliminate at-will
employment,
for example with handbook provisions, or created an employment contract
in a
hiring letter? If you have, then you may have to show more documentation
before
discharge (that is, establishing the nine elements of just cause).
Robert E. Gregg, W. Virginia Univ. 1978, is a partner in
Boardman, Suhr,
Curry & Field LLP, Madison, practicing in employment law. In
addition to
litigation, a major emphasis of his practice is consulting to analyze
work places,
develop policies and procedures, and resolve employment problems before
they
generate legal action. He formerly was the chief equal rights officer
for the
Wisconsin Personnel Commission.
Communicate and document. Termination should never be a
surprise.
Employees should know the standards and expectations, so they can shoot
for the
target. Let employees know how they are doing. Use a
performance improvement plan that details issues of concern;
periodically provide written feedback on
overall performance and immediate written feedback on any significant
errors (but
don't be picky on every little thing - it looks unfair in the
aftermath). When
any material error is repeated after verbal criticism, you should start
written documentation. The written feedback does not have to be harsh;
it can be a
simple e-mail or memo reminder, and it should be presented in the spirit
of
correction. It must be clear. And sooner or later, give warning that
employment can
be terminated.
Describe facts - don't label the
person. Focus on the work behaviors, not on your frustration about
the employee's personality. Labels such as
"incompetent," "bad attitude," lazy," and
"dumb" just create animosity. Use of some
of them can get you sued. Scripting and editing what you will say before
confronting the employee will help ensure that you are describing facts
and not
labeling the person. Scripts help you focus on correcting performance
instead of
venting supervisory frustration.
Listen to the employee. You may find that other factors
in your
business affect the employee's performance. Personal situations,
especially
disabilities, may require consideration or accommodation that may help
the employee
improve his or her performance. Finally, listening to the person's
concerns, reasons,
or excuses makes you forewarned and forearmed to defend any challenge to
discharge. You can cover those bases before discharge, and be prepared
to meet them later.
Treat employees consistently and
equally. Before discharging the problem employee, review other
employees' records to ensure nondiscrimination. Is
there anyone else who is similarly situated in performance, but has been
overlooked, or is liked better, and doesn't stand out as much in the
eyes of
management? That inequality can garner liability.
Wisconsin
Lawyer
