Wisconsin Lawyer: What Keeps You Awake at Night? How Do I Handle an Underperforming Staff Person?:

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    What Keeps You Awake at Night? How Do I Handle an Underperforming Staff Person?

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    Wisconsin LawyerWisconsin Lawyer
    Vol. 81, No. 2, February 2008

    What Keeps You Awake At Night?

    How Do I Handle an Underperforming Staff Person?

    Due to growth in our small firm, I recently was designated the partner in charge of personnel matters. We have an employee who does some tasks satisfactorily but has not improved in other important areas. What steps should I take to document performance and decide whether and how to fire the employee?

    Sidebars:

    Lights Out

    Communicate Directly and Provide Concrete Feedback

    Michael Ablan

    Decades ago, when I took the time to be extremely detailed in my delegation of tasks, I did not have a problem with underperformance. Mostly, I delegated face to face. As time went on, and the projects got more complicated, I sacrificed that style in favor of a larger volume of work and used machines to communicate. Instead of training, nurturing, and motivating "underperformers," I simply put demands on them. This was a mistake.

    Now, after years of experience I have realized that staff members want you to communicate directly with them, understand them, some of their personal issues, and their fears of success and failure and, quite bluntly, they want you to show them how and why they are underperforming and what steps they can take to improve. I look for patterns of underperformance and when I discover something that may help, I happily walk into that person's office.

    It's fun for both. Oftentimes I will sit at the staff person's computer and do demonstrations of what I do to increase my efficiency. Secondly, I seek their input on all projects and I constantly ask them how they feel about each project. It opens up an opportunity for bonding. I always remember to say thank you.

    - Michael Ablan, Michael Ablan Law Firm SC, La Crosse

    Document, Document, Document

    Brenda 
Majewski

    Documentation is key to effective employee retention or termination. Specific examples of the errors or areas of underperformance should be part of remedial training meetings between you and the employee. Allow the employee an opportunity to determine what he or she will do to rectify the underperforming areas and sign a statement to that effect. Document if those actions are not taken. Look at your firm's procedure on termination. Do you have a progressive disciplinary procedure (verbal warning, written warning, suspension, termination)? Are the errors the employee is making putting the firm at risk of any ethical violations or malpractice issues? Do you have examples of reasons for immediate termination in your employment manual? A termination should not come as a surprise to an employee if you have met with the employee, documented the issue, given the employee a chance to improve performance, and documented and communicated any improvement or lack of improvement.

    - Brenda A. Majewski, administrator, Kohn Law Firm S.C., Milwaukee

    Link Employee Performance to Written Job Description, and Set Benchmarks for Improvement

    The first step you will need to take is to have a current, written job description for the employee's position. Next, meet with the employee to go over the job description, giving and asking for honest feedback on each of the tasks. Does the employee realize she or he is not performing up to expectations on specific tasks? Try to find out why the employee isn't accomplishing specific tasks satisfactorily.

    Work with the employee to set specific, quantifiable benchmarks and deadlines, in writing, for improvement, and make sure the benchmarks are signed and dated by the employee. Include a statement of understanding that the benchmarks are understood, and that discipline, up to and including termination, is a management option for the employee's failure to meet the benchmarks. Be sure to document all meetings in writing. Meet regularly with the employee to monitor progress, making sure to offer any reasonable help needed for the employee to succeed (for example, training or mentoring).

    If the employee continues to fail to meet the benchmarks, you will have the documentation necessary to terminate the employee for failure to achieve the functions of the position as stated in the job description. Whether you want to terminate or not will depend on how well the employee performs other tasks, how hard it would be to replace the employee, whether the employee's tasks can be absorbed by existing staff, and whether you have someone able to spend the time necessary to train a new hire.

    - Lenor Coe, Firm Administrator, Godfrey, Leibsle, Blackbourn & Howarth S.C., Elkhorn

    Clearly Communicate Consequences of a Failure to Improve

    Mark 
Goldstein

    In my labor and employment law practice, I recommend that if the employer has not already done so, it should create a job description (include the duties at issue). The employer should present the job description to the employee and communicate that a performance review will take place at a specific point in the future (for example, 3-12 months). For many employees, the communication of explicit, objective criteria and a precise return date will rectify the situation.

    If a job description is already in place, and it includes the duties at issue, the employer should give the employee a performance improvement plan. This should be done in person with the consequences of a failure to improve clearly communicated. The employer should set a return date but with a shorter timeline (for example, 30-90 days). By this action, the employer has now documented a "legitimate business reason" for any subsequent discipline or discharge.

    If the situation reaches critical mass, the employer might consider termination. Under Wisconsin law, an employer may terminate an at-will employee for any or no reason (subject only to discrimination laws and inferences created by insufficient documentation of performance deficiencies).

    If the employee truly excels in some areas, the employer may consider offering training in the areas of deficiency or restructuring the job.

    - Mark J. Goldstein, Milwaukee




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