Dilemma for Discussion . . . Problem Employees, by Dan Stern

Today’s Dilemma for Discussion ("DFD"):

Employers often are faced with addressing mean, angry, petty, and obnoxious (you get the idea) employees who say or do bizarre things, but never become physically confrontational or violent. These situations often are not witnessed by third parties, but the complaining employee, who is the target of the comment, generally does not want to be identified.

Comments and situations we have assisted employers with include: "You don’t want to see me away from the workplace" (employer would like to respond – "Why, are you even more incompetent when not at work?"). These types of comments probably do not warrant a call to the authorities. Some comments, however, make employers contemplate calling the SWAT Team, such as, "I can decide who lives and dies, as I know who is just and unjust;" "I have no problem hitting women;" "I am going to kill my neighbor’s kid if any more of his B-B’s cross my yard;" and "I just killed a cat in the parking lot."

Gestures are often the concern, such as an employee simulating a pistol with his/her hand and feigning shooting a coworker. One of the more pleasant employees we’ve encountered kept hanging a noose at his desk, despite repeated instruction to remove it.

Practical and legal points to ponder in these situations:

Does the reporting individual have to be identified? Does the accused have to be given an opportunity to defend himself/herself? Is termination appropriate? Does the termination have to be in person? Who should terminate the problem employee?

Tips for the taking

For this DFD, the reporting employee’s name does not have to be disclosed to the accused, but the reporting employee’s name may have to be revealed if legal action arises from the employment action taken against the accused. Reporting employees should be notified of this and advised if their names are later revealed during litigation or otherwise disclosed. Also, the accused does not have to be given the opportunity to defend himself, but should be so allowed if possible.

Accused employees may be terminated even if the reports cannot be corroborated, particularly if the report is credible and there is an apparent need to protect others. When there is no corroboration, determine if the report is clear as to time and events. If the accused has no viable response or is very vague, then it is likely that adverse action is appropriate.

Before taking adverse action, we advise that you review all applicable policies, determine if similar situations have occurred and find out how they were handled. Remember to be consistent.

I have been asked on occasion if I would terminate the employee to make sure it was "done correctly." Not sure about that, but remarkably, I have always been too busy to be able to help out. No doubt, the individual giving notice of termination should not let an argument start and should be prepared to end the meeting quickly if things get ugly. Termination by phone is an option, but in limited circumstances.

Ultimately, employers have a great deal of flexibility in handling these situations, but must be mindful that these types of disciplinary actions must be handled like almost any other counseling or termination.

Have a Dilemma?

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Daniel R. Stern
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