Back to Work and Back Under the Microscope?

WHEN EVERYONE REPORTS BACK TO WORK IN NEAR-NORMAL FASHION, SHOULD EMPLOYERS JUST CUT EVERYONE A BIG BREAK AND SET ASIDE DISCIPLINE THAT WAS IN THE PIPELINE PRE-COVID?


One fine day, several weeks ago, a respected professional colleague and I had one of those conversations infinitely fascinating to employment lawyers and human resource professionals. My colleague, Dr. Jeanette K. Winters, is a partner with Parrish Partners Leadership and Management Consulting, a California-based leadership and management consulting firm. We were mulling through the many challenges employers face in these strange times, and one that neither of us had seen much commentary on was what to do about discipline that was in the works at the time pandemonium descended. Do you cut everyone slack and just “forgive” past transgressions and grant a clean slate, or do you pick up where you left off in the discipline progression? What is fair? Are there legal pitfalls either way?


We did a bit of brainstorming and thought these illustrative scenarios would be helpful to employers trying to decide what path to take.


RESUMPTION OF HANDLING PRE-COVID PERFORMANCE PROBLEMS

Should staff get a clean slate post-COVID?

Question: We are just returning to full steam from a long, scary lull. Before the hiatus, we had begun counseling Mary about her sloppy reports and habitual tardiness. But, in the big picture, these things seem a bit overblown now. Should we disregard our earlier counseling sessions and give Mary the luxury of a clean slate?


Temporary shutdowns and other unusual work arrangements should not operate as free passes for past problems. Discarding past progress toward correcting poor performance or misconduct will not magically cure those difficulties.


Upon reaching a stage approximating the new normal, take the opportunity to review past problems and reiterate expectations and standards. If COVID has altered expectations, take the opportunity to re-set. Resume the education process.


Entirely disregarding previous counseling may set the employee up to argue that previous counseling (of whatever form) was incorrect or pretextual, unnecessary, or overblown. Moreover, for employees who continue down the same unsatisfactory path, the company is unnecessarily forcing itself to start over on any standard progression that applies.


Further, if an employee has committed a conduct violation, an unexpected leave period does not erase that violation. If an employee has already been counseled about a need to do her job differently or refrain from particular conduct, the counseling did happen, and there is no need to pretend it never occurred. In situations where that misconduct affected others, the company should continue with the necessary precautions. For example, don’t neglect supplemental training and discipline for someone who engaged in sexual harassment if you did not get that accomplished before the shutdown.


Caution with COVID-related absences

A caveat: be careful with escalating absence discipline based on COVID - related absences. Even if the employee was reprimanded about absenteeism before COVID shut down the office, scrutinize whether recent absences are protected under any statute – ADA, FMLA, FFCRA, etc. Suppose you have confirmed that the absence met CDC guidelines recommending staying away from the workplace. In that case, punishing an employee for taking the cautious approach is not the best action to take, even if there is a whiff of “happy to be at home waiting to see if I fall ill” infusing the scenario. (Do you really want the employee at work while waiting to see if he is positive? Do you want him rushing back while still contagious?)

The myriad ways absenteeism can manifest itself are beyond the scope of this note, but bear in mind that utter frustration with “Always Absent Al” needing yet another quarantine period does not justify letting the ax fall. Breathe deeply and categorize those absences before applying rigid pre-pandemic absence limits. Remember to keep an eye out for remote work opportunities if the employee can work under the circumstances. Of course, evidence of misrepresentation about the need for time off will also change the analysis.


RESUMPTION OF INCOMPLETE INVESTIGATIONS


Question: We had just begun an investigation when we shut down operations due to COVID. Should we pick up where we left off and continue looking into the case?


Assuming the situation has not become moot in the meantime, reassess progress to date and complete the investigation. The complainant remains entitled to a fair review of the complaint, and problems should not be ignored just because the usual review process was disrupted. Unethical activities and inappropriate behavior toward co-workers do not “go away,” and past misconduct should be evaluated with remedial actions implemented as the workforce cranks back into near-normal mode. If evidence has gone stale or is no longer available, do the best you can to determine the facts. In some situations, the remedial steps taken now may differ from what the company might have implemented back in February 2020, but improper behaviors should still be halted.


REVISITING PRIOR PERFORMANCE ISSUES WITH MARGINAL PERFORMERS


Question: We had counseled an employee about specific developmental areas that need improvement. The performance issues are significant enough that this individual could face serious consequences if performance does not turn around. How should we handle this situation?

Time off does not erase past difficulties. If anything, being out of the regular swim of things may have worsened deficiencies. If someone has already been counseled or coached about particular problems, reminding the employee about that may not be necessary, but consider special offers of support. For example, “Hey, before the shutdown, you were having difficulty getting your reports done on time. We’ve been off a while, so let me know if you need a refresher on the process or any extra back-up while we get back into the new routine.”


It is also important to note that managers should do their best to get a handle on new or changing performance/production requirements and communicate those to all as soon as possible. Legitimately, management should emphasize that all employees will need to be flexible, adjusting to change as needs unfold. This will be particularly important for those struggling to meet past standards.

Performance deficiencies, distinguished from misconduct, may deserve a re-set due to business fluctuations and new difficulties created by COVID. Some employees’ jobs may have changed significantly – different duties, different territories, or other changes in job scope. Are old growth targets realistic now? Accordingly, assessing those employees afresh based on performance in their new roles may be the fair approach. Focus on whether the employee is meeting the new targets, not the old targets that no longer apply, even if those superseded targets were a cornerstone of a performance improvement plan. Punishing an employee for failure to meet outdated requirements accomplishes nothing and may read as a pretext to get rid of someone based on trumped up reasons. Moreover, in these chaotic times, management needs to be nimble and quick, working with poor performers as their jobs and targets change due to the unexpected.


A version of this article was published in the HR Exchange Network newsletter in October 2020.


The suggestions offered here are intended to be helpful. However, nothing in this column constitutes legal advice. Always consult qualified legal counsel for assessment of your particular situation.