Dealing with Difficult Employees
By Kathleen Pohlid
The problems difficult employees present can be varied. However, regardless of the problem - absenteeism, poor attitude, workplace harassment, unprofessional demeanor, rudeness, disrespect, or other unacceptable conduct - there are measures establishments can take to address the problem. Addressing employment problems can be a two-edge sword for employers, especially when there are concerns that the employee may assert that the disciplinary action taken against them was for an illegal reason or in retaliation for exercising a legal right. While there is no guarantee to prevent employment legal action, there are measures employers can take to address problems involving difficult employees and minimize potential liability. Here are ten tips to do so: **1. Lay the Foundation Before You Hire** Every establishment should have equal employment opportunity (EEO) and standards of conduct policies that apply to all employees, work rules, and job descriptions setting forth the essential functions for each job. The best evidence of the existence of these measures is a written document. Establishing these policies before hiring is important because it puts employees on notice as to an employer's expectation regarding employee conduct and performance expectations. An employer's commitment to EEO is an important measure to protect against liability involving discrimination and workplace harassment laws. At a minimum, an employer's EEO policy should express the employer's commitment to equal employment opportunities for qualified employees and applicants regardless of their race, color, gender, religion, national origin, age, disability, genetic information, veteran status and other characteristic or status protected by federal, state and local laws. Since some states provide additional legal protections - such as protection based upon marital status and sexual orientation - establishments should consult with counsel in drafting their EEO policy. The EEO policy must go beyond merely reciting the employer's commitment to EEO. It must also address the following: (1) confirm that the policy applies to all terms and conditions of employment; (2) strongly communicate that discrimination and harassment regardless of the source will not be tolerated; (3) give assurance that employees will be protected against retaliation for reporting, objecting to, or making a complaint of harassment or discrimination, as well as, participating in complaint proceedings before the Equal Employment Opportunity Commission (EEOC); (4) establish procedures for employees to effectively make complaints regarding violations of the Company's EEO and standards of conduct policies; (5) provide assurance that the confidentiality of harassment complaints will be protected to the extent that it is possible to do so; and (6) provide assurance that immediate and appropriate corrective action will be taken to address discrimination and harassment. Employer procedures for reporting violations should provide employees with the ability to bypass supervisors or other persons who the employee contends violated or ignored company policies. Standards of conduct are important since they address conduct and behavior that can be disruptive to the workplace, even though it may not constitute behavior in violation with the EEO policy. Establishing these standards of conduct - such as respect, trustworthiness, reporting for work on time, cooperation, dedication to their assigned task, and working with others - puts all employees on notice of the behavior expected. In developing the standards of conduct, employers must be careful not to violate the rights of employees under the National Labor Relations Act (NLRA) to engage in concerted activities, which is addressed further under tip 7 below. Employers who establish work rules and essential functions for employee jobs are better able to address and implement disciplinary action. Conversely, employers who fail to do so may be subjecting themselves to potential liability issues including wrongful termination and allegations of non-compliance under the Americans with Disabilities Act, the Family and Medical Leave Act (FMLA), NLRA and other labor and employment laws. For example, in Frankl v. HTH Corporation, the U. S. Court of Appeals for the Ninth Circuit issued its decision in September of 2012 upholding an administrative law judge's decision that a Hawaiian hotel violated the NLRA when it terminated a housekeeping employee for violating various work rules. The court noted that the work rules were not written and concluded that the employee's union participation was a motivating factor for the termination. **2. Train Your Employees** Training provides employers with the benefit of reinforcing their policy and ensuring that it is communicated to employees. Employers should ensure that the training goes beyond informing employees that sexual or racial harassment is prohibited. Training should emphasize that all employees (not just women or minorities) are protected against discrimination and harassment and that this protection applies to prohibit harassment from non-employees, including vendors, customers, visitors, and others. Ideally, the training should include an interactive component and provide employees with knowledge to identify and report discrimination and harassment. Several states require employers to provide regular training on workplace harassment. Employers should ensure that their training is documented and that it complies with requirements for their respective jurisdictions. **3. Expect Supervisors to Supervise and Set the Example** Supervisors are a crucial resource for establishments in addressing problems involving employee discipline. In many cases, supervisors can expose the establishment to greater liability by harassment actions they take towards employees, or by ignoring harassment of which they are aware. Conversely, supervisors who support the establishment's EEO policy and who supervise and evaluate employees accordingly provide their employers with a significant asset in preventing employment problems. Consequently, an essential function of every supervisor's job should be their ability to effectively supervise subordinates in performing their essential job functions and setting the example and achieving compliance with the establishment's EEO and conduct standards. Establishments should be aware that they are vicariously liable for the actions of, and unlawful harassment by, supervisors. Recently, in Vance v. Ball State University (June 24, 2013) the Supreme Court defined a supervisor, for purposes of discrimination under Title VII of the Civil Rights Act, as an individual who has the authority to take or recommend tangible employment actions affecting the employee. This is significant because the Supreme Court previously held that employers may claim an affirmative defense for harassment committed by supervisors if: (1) no adverse employment action was taken against the employee; (2) the employer exercised reasonable care to prevent and correct promptly any harassment; and (3) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. This defense is also referred to as the Faragher Ellerth affirmative defense. In addition to various liability for supervisors, employers are also liable for the negligent harassment and discrimination of employees by co-employees and others of which the employer either knew, or should have known, to occur. This also imposes a significant responsibility upon supervisors to monitor the workplace environment and to address and correct violations of the EEO and standards of conduct policy. Supervisors must be trained and informed that the employer takes allegations of discrimination and harassment very seriously and that supervisors are expected to do so as well. All claims of discrimination and harassment are to be immediately reported to the employer for investigation. **4. Enforce Your Policy - Promptly and Consistently.** Employers who fail to promptly and consistently address and enforce employment problems often create the potential for legal liability. In the case of employees who harass other employees, an employer's reluctance to act promptly and consistently in accordance with their EEO and conduct standards policy can convey to the difficult employee that such matters will not be enforced. This may lead the employee to more aggressive harassment behavior. Failure to enforce policies promptly and consistently with respect to all employees may also provide employees who were disciplined with a discrimination claim against the employer. Employers should also be aware that failure to address matters promptly and consistently can imply that the stated reason for their disciplinary action is pretextual to cover an illegal motivation. For example, in Mullins v. Bondib Hotels, Inc., (S.D.N.Y. Dec. 22, 2011), a federal court held that an employee's use of FMLA could be a motivating factor in her termination. In Mullins, the employee worked as a front desk clerk for a Poughkeepsie hotel. In 2009, about four years after she began her employment, employees noted that she developed an attitude and was rude to guests. In the Spring of 2009 she informed the hotel's general manager that she was expecting a baby. Later in 2009 after returning from maternity leave, the employee was told she was terminated for lack of work and not eligible for rehire. The evidence showed that of the three other hotel employees who were fired for lack of work, all of them were deemed eligible for rehire. This was not the only discrepancy. Although the hotel initially asserted that she was terminated for lack of business, it later averred that her job performance also supported her termination. The judge found that these inconsistencies raised a sufficient question of fact as to whether the employee's FMLA leave was a motivating factor in her termination. The outcome in this case may have been different if the establishment had taken prompt action to address the employee's job performance issues and if it had been consistent when initially providing the reason for her termination. **5. Establish Procedures to Address Employee Complaints** Establishments should communicate to employees that they are encouraged to come forward and report discrimination and harassment. The EEOC advises that the complaint procedure should not be rigid, such as requiring employees to submit the complaint in writing before the employer takes action. Additionally, procedures that require all harassment to be reported to the employee's supervisor are not effective since the supervisor may be the harasser, or may have condoned the harassment by co-employees. **6. Impartially Investigate and Address Workplace Complaints** Employers should establish procedures to ensure that employee complaints are promptly, thoroughly and impartially investigated. The person conducting the investigation should be trained on conducting an investigation and able to do so objectively. This will often necessitate the investigator making credibility determinations. The goal should be to determine whether or not a violation occurred. This will enable the employer to effectively address corrective measures and appropriate disciplinary action. Establishments that promptly respond to harassment complaints and take immediate action are best able to defend against harassment complaints. For example, in Gregg v. Hay-Adams Hotel, 942 F.Supp. 1 (D.D.C. Sept. 12, 1996), a hotel establishment was able to successfully defend claims by a female employee of harassment by a co-employee because the establishment had promptly and effectively responded to her complaint. With two weeks of filing her complaint, the establishment conducted an investigation that included interviews of four witnesses along with witness statements. The hotel's general manager contacted the female employee to assure her that harassment will not be tolerated and the offender was disciplined with a formal written warning. The hotel re-issued its anti-harassment policy and conducted seminars. Additionally, the work place was monitored and no further harassment occurred. The court held that the hotel's actions were sufficient to defend against the charge of harassment. **7. Avoid Interference with Employee Concerted Activities.** Employees, whether or not they are part of a collective bargaining agreement, have a right to engage in concerted activities to include working together with other employees to improve the terms and conditions of their employment. The National Labor Relations Board has held that employer policies that tend to discourage employees from engaging in employee concerted activities violate the NLRA. Establishments should review their policies carefully to ensure that they do not contain terms that might be construed to prevent or discourage employees from communicating with each other to discuss and improve their working conditions. **8. Do Not Undermine Employment At-will Agreements** At-will employment agreements provide an employer with an effective option for removing a toxic employee from the workplace: termination. Employment at-will agreements enable either an employee or an employer to terminate the employment agreement for any reason that does not violate state or federal law. While many establishments are aware of the term employment at-will, many may not be aware that employment at-will agreements may be easily and unknowingly modified. Many employers, including hotel establishments, confirm the existence of an express at-will employment agreement by documenting it in their employee handbook and by obtaining signed confirmation from employees upon hire. However, be aware that an at-will agreement - even when expressed and documented in a handbook - can be modified. Ensure that employee handbooks and other documents and communications with employees do not contain terms that can undermine an at-will agreement. Additionally, be aware that state laws vary on employment at-will and other employment policies. Therefore, consult with counsel when establishing your policies. Courts have rejected employer arguments that wrongful discharge claims cannot be made when the employer has an express at-will agreement. For example, in Hartnett v. Papa John's Pizza USA, Inc., (D.N.M. Oct. 29, 2012), a federal judge denied the company's motion to dismiss a wrongful discharge complaint filed by a former operations manager for the company who alleged that he was wrongfully discharged. Although the employee handbook clearly stated employment was at-will and the employee signed an agreement to that effect upon hire, the judge held that there were sufficient issues of fact as to whether the at-will agreement had been modified to require that the company follow additional procedures prior to terminating an employee. During his employment, Harnett attended mandatory training workshops, during which he was taught that the company required certain procedures to be followed before terminating employees under certain circumstances. Hartnett also attended the Company's internal workshops titled “Managing within the Law” which led him to believe that he would only be terminated for cause or underperformance and that the Company would provide due process to employees in termination. Additionally, Harnett alleged that when he was promoted to operations director and asked to sign a confidentiality and non-competition agreement, he was told “[a]s long as you perform, don't violate any policies and procedures, you'll be here forever.” This case emphasizes the importance of employers avoiding actions that can cause their at-will agreements to be modified. **9. Train and Utilize Human Resources/Personnel Staff** Human resource (HR) personnel provide an important resource to employers in terms of compliance with employment laws. Moreover, they can also help employers by reviewing disciplinary action and terminations to ensure that they are sufficiently documented to withstand discrimination challenges. Additionally, HR personnel can be effective in conducting workplace discrimination investigations and in conducting exit interviews to identify potential claims of discrimination. However, their effectiveness is depended upon how well they know and adhere to employment laws and procedures. There are several laws to keep up with and the regulations can be complicated. Employers should invest in training of the HR staff to ensure for legal compliance and to enhance their ability to identify potential problems. **10. Discipline and Terminate when Necessary** Employers that fail to timely respond to address employee complaints may be considered to implicitly condone the harassment and disruptive conduct of the offending or difficult employee. Furthermore, they may not be eligible for the Ellerth Faragher affirmative defense. If an investigation reveals that an employee committed a serious violation of an employer's EEO policy or standard of conduct, the employer must promptly respond to ensure that corrective action is taken and that the employee committing the violation is disciplined. Failure to do so can result in liability imposed against the employer. This principle is illustrated in a recent case involving a New York City hotel establishment. In MacMillan v. Millennium Broadway Hotel, 873 F.Supp.2d 546 (S.D. N.Y. June 11, 2012) a jury awarded a housekeeping employee $1 million in punitive damages and $125,000 in compensatory damages for racial harassment by his supervisor. Although the compensatory and punitive damages were reduced to $30,000 and $100,000, respectively, the judge upheld the jury's verdict that the hotel did not adequately respond to the harassment. The employee's supervisor displayed a voodoo doll - with black face and a noose around the doll's neck - from a bulletin board in the hotel. The doll remained on display for over seven days, even after the employee complained. Although the hotel conducted an investigation, neither the supervisor who hung the doll, or their supervisor, was disciplined. Difficult employees can be costly to employers. The measures outlined above can enable an employer to address employee problems and protect against potential discrimination and retaliation claims.
