Dealing with Problem Employees within Employment Law

Managers also have rights and responsibilities and are able to deal with problem employees in a way consistent with employment law.

Editor's Note: This is the first in a series of articles that will be taking a look at challenging employees. In the coming weeks, Lynne will be covering common behavioral problems (gossiping, violence, drug use) that employees may posses and how to address these issues.

In my experience, the first thing that managers need to do in order to deal with challenging employees is to ground themselves in their own rights and responsibilities. Once you understand your rights, it's much easier to tackle the tough conversations you need to have.

Managers Have Rights and Responsibilities
Let's get one thing perfectly clear. You have a right to manage. Many managers, in today's environment, seem confused about this. They wimp out and don't fulfill their responsibilities to the company and to their employees.

Challenging employees are not children, even though they may sometimes act that way. They have to do what you say, assuming that what you're asking them to do is legal, ethical and consistent with your organization's policies; otherwise, you can terminate them.

With all the employment litigation and general employee grousing these days, it can be easy for a manager or supervisor to feel as if he or she is under siege. Employees complain at the first opportunity about workload, their coworkers, and the "lies" they believe upper management is telling them.
In modern workplaces, where just answering e-mail can take up half of all your productive hours, it's easy to lose sight of the big picture: You are the boss! If you're a manger or supervisor, you do have rights. These rights can and should help you manage difficult employees. Your rights are limited to three, but they're big ones. You have the right to:

  • Require compliance with your directives
  • Change standards and assignments
  • Require excellence

Let's take those one at a time.

Require Compliance with Your Directives
As long as what you're asking your employees to do isn't illegal, immoral, or unethical, they must do what you ask. Otherwise, it's insubordination. This legal term doesn't just refer to military service; it's a hallmark of employment law. Employees must do what you ask, and if they don't they can be fired or disciplined. They may think that what you're asking them to do is silly or stupid and they may be right. They may think that someone made a mistake making you the boss but regardless of whatever else you are, you are always, the boss. You can ultimately terminate them if they refuse to recognize this painful truth - as long as you have followed the proper steps and have the proper documentation. Instead of asserting this right, many managers wimp out! Why do they do that? Many reasons, some are:

  • Unreasonable lawsuit paranoia
  • Conflict avoidance
  • Fear of losing a friend/colleague
  • Ignorance of their rights
  • Too busy

Regardless of what you think your reasons are for not having the difficult conversations that you need to have, you still have the responsibility to have them. Many managers do have a fear of conflict and want to avoid it. One of the best things you can do to improve your management skills is to reframe your attitude about conflict. You need to realize that-rather than something to be avoided-conflict is a part of life and something that can actually lead to higher performance and more creativity in the workplace. That's because conflict provides the creative energy that leads to innovation and productivity "juice" that you need to hear everyone out and come up with better ideas than you might have collected as individuals.

In order to make this leap, you need to have good conflict skills. You can acquire conflict skills, just as you would any other new skill such as learning a new computer program or salsa dancing steps.

The key is to step back from the emotion of the moment and use the rational part of your brain to activate the skills you need. It's easy to become emotional about employee matters. Most of us spend as much time-or more-at work than we do with our families. Employees can end up pushing our buttons just as our family members do. So, the key is to take a deep breath and calm down the "fight or flight" response that you have in response to stress

If You're Worried About Lawsuits
Many managers have such an unreasonable fear about lawsuits that they will avoid saying anything for fear that it will be used against them. That will not serve you in the long run. While employment litigation is booming, if you follow the rules of this article, as well as your employer's policies, your chance of being sued will diminish substantially. Most of employment law turns on being fair, a value with which most people would agree. If you're confused about a specific employee interaction, you can always fall back to that position to ask yourself whether the action you're going to take is fair to the employees involved.

Change Standards and Assignments
Employees frequently lament and balk when you try to change standards or assignments: "My previous manager didn't make me do that." You may be tempted to reply, "Do I look like your previous manager?" and perhaps you should, but the bottom line is, you can have your own standards, as long as they're legal, ethical, and consistent with your organization's policies.

One manager, for example, Sarah, came to me when she acquired a new team that had very little discipline. Their last manager had been lax. Thus, projects were turned in late, workers pointed fingers at each other, people worked odd hours or not at all, and gossip ran rampant. "How can I convince them to change when they've had such bad management?" she cried.

I advised Sarah that she could and should start fresh. They won't like the change and it won't be easy, I told her, but you need to make it clear that things will be different going forward and you must lay out specific expectations.

One easy way to do this, if you're a new supervisor or gain new employees who appear to be difficult, is to have one-on-ones with each employee in which you set forth your goals, standards, and objectives. Then send them away and have them e-mail back to you their understanding of what you said. Trust me, you'll be depressed. You'll decide that human communication is hopeless, because what comes back will be different from what you think you said. You can, however, use this as the opportunity to correct their misconceptions. It also demonstrates that you bent over backward in trying to communicate with them and be fair.

After they've been working for you for a while, you should continue to have these one-on-ones with them. Again, ask them to e-mail back their understanding of what you said. Again, you'll despair, and think they're speaking a different language. If you persevere in correcting these miscommunications, however, you'll have an excellent documentation trail for which they did most of the work. This also makes writing performance reviews much easier.

If you're a manager who inherits a new group, you can and should sit them down and "clear the decks." Inform them that you're going to be starting fresh with them and that you expect them to do the same, even if you do things differently than their previous manager. You then can have the one-on-ones with them as described above, but you will have set the stage.

Require Excellence
Employees cannot get away with sloppy, substandard work. You have a right to insist on high performance standards, and you should. As long as you've clearly explained what behavior (not attitude, or other vague terms) you need from employees, they must conform to your standards.

I was once explaining this to a class of managers and an HR director informed me that they couldn't require everyone to be excellent, since they had to do performance reviews on a curve and a certain number of people had to be rated as underperforming! Well that's a backwards (although somewhat popular) way to run a company. The reality is that you can require everyone to be excellent-and why wouldn't you want them to be?

Lynne Eisaguirre is a former practicing employment attorney whose media credits include CNN Headline News, ABC News, Bloomberg TV, U.S. News & World Reports, The Boston Globe and The San Francisco Chronicle, among many others. She presents speeches and workshops on management issues to clients such as Bristol Myers Squibb, Harley Davidson, Sun Microsystems and Southwest Airlines. You can reach Lynne at