How to handle problem employees

Tuesday, July 19, 2005 at 10:00pm

This week's tip addresses the hand-wringing, heart-stopping dilemma you face when deciding what to do about an employee who needs to go but who you suspect (or know) will cause trouble for your company. And once again, for your enjoyment, we've included a multiple-choice test.

You have a problem employee you're finally ready to discharge. You've documented her performance problems, tardiness, absenteeism and even rudeness to people visiting your office. But you have a nagging feeling that she'll look for a reason to sue. She's in a protected class, and there was some possible harassment against her a few years back that's documented in your files. Also, up until her latest evaluation, her performance was deemed satisfactory.

So what are your choices?

(a) Inform your attorney about the situation. Then go through with firing her, focusing on your solid reasons. You can't change the past, but you can do the right thing now.

(b) Point out to the others involved in the discharge decision that firing her may be more trouble than it's worth. You've put up with her this long; you can tough it out a little longer. She'll probably quit eventually.

(c) Use the situation as an example for the supervisor who glossed over her shortcomings in his evaluations for years. Your point may be even more dramatic if you convince the decision makers that there's no way you can fire her without paying unemployment, dealing with an investigation by the Equal Employment Opportunity Commission, and hearing from her brother-in- law, who happens to be a lawyer.

The correct answer is a close call between (a) and (c). But the better choice is (a). You have solid reasons for firing the employee - use them. An employee in a protected class could always sue you; there's nothing you can do about that. But solid reasons for a discharge should trump the fear of being sued. It's a good idea not only to inform your attorney but also to get her advice. Go over everything about the employee's history with your company so the advice you obtain will be informed and sound.

The bottom line is, if the performance problems you've documented are recent and you've consistently used those kinds of performance problems as a reason for firing someone, you should show the employee the door.

Although (c) isn't entirely the "wrong" answer, the problem with going that route is that you still have a poorly performing employee, and you've missed yet another opportunity to do something about her.

One more thing: Go ahead and make an example of the supervisor. Deal with both problems at the same time.

Alert: document destruction policies

A final rule addressing the disposal of consumer information went into effect on June 1, 2005. If you use outside companies to perform background checks on your employees or job applicants, pay close attention to the following requirements.

The "disposal rule" is part of new regulations issued last fall by the Federal Trade Commission under the Fair and Accurate Credit Transactions Act (FACTA). FACTA is a federal law designed to minimize the risk of identity theft and consumer fraud by enforcing the proper destruction of consumer information. The disposal rule applies to all businesses that use consumer information - including employers.

As those of you familiar with the Fair Credit Reporting Act know, "consumer information" includes any information obtained from a consumer-reporting agency, back-ground-check company, or another third party used to make decisions about job applicants or employees. Typical examples of consumer information possessed by employers include reports containing criminal, credit, or driving background checks or documentation of investigations into employee misconduct conducted by third parties.

The disposal rule doesn't require you to dispose of consumer information within any particular time frame. But it does require you to dispose of the information, whether it's in electronic or paper form, in a way that safeguards against "unauthorized access to or use of the information in connection with its disposal."

So if you've just been throwing consumer information in the trash, stop it. Proper methods for disposing of paper documents under the disposal rule include burning, pulverizing, or shredding. Electronically stored information should be deleted in a way that ensures it can't be reconstructed.

FACTA regulations also state that if you contract with third parties to destroy documents or electronic information, you must make sure the disposal company is using methods that comply with the disposal rule.

If you don't have a document retention policy, you need to implement one - and make sure it includes FACTA-compliant provisions for destroying consumer information.

If you already have a policy, review it to make sure your document destruction procedures are in compliance with the disposal rule.

Kara Shea represents businesses in the area of labor and employment law in Miller & Martin's Nashville office and is an editor of M. Lee Smith Publishers' monthly newsletter Tennessee Employment Law Letter. More on human resources can be found at HRhero.com.

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