Suck It Up! Sometimes You Have To Be The Bad Guy

For most managers out there, being the “bad guy” isn’t always easy.  Sure, when it comes to disciplining and employee they have no problem.  But when it comes to having to terminate an employee, most don’t like that feeling regardless of how rock solid a case you have.

Being the “bad guy” comes with the title.  You have to tell someone when they are doing things wrong, violating policy, presenting a bad attitude.  You can’t be their friend, no more than a parent can always be a “friend” to their child.  As much as it is a discomfort for some to do, terminating an employee after you have determined it is the right course of action is in the best interest of the company so you have to take a deep breath and just do it.

Sometimes, the employee will just up and leave…and we secretly hope this is the reaction to make it easier to manage the situation.  However, sometimes the employee will make a last ditch effort to plead their case and get you – the manager – to change your mind.  Here is where you can get yourself into trouble if you don’t stand firm on your position.

Employee Morale

Employee talk.  Gossip is rampant in companies regardless of how well some think they manage it.  Employees talk after hours with each other or exchange opinions via social media.  So, if you are terminating a problem employee remember you are setting an example for the others as well.  They are watching to see if 1) you are a man (or woman) of your word by sticking to what you set out to do, 2) if you care about the well-being of all your employees and 3) do you really hold power.  That last one is vital!

If the employee being terminated has been problematic and complaints have been filed about this person over and over with you yet when the moment comes for you to eliminate the problem and you don’t, it sends a message to the other employees that you are “all talk” and will bend to complaining employees.  What happens next?…

Respect Is Lost

Two things are vital for a manager to gain from their employees: trust and respect.  Without even one of them, you can’t effectively manage your team.  When you don’t stand your ground and act as a manager, why should other employees treat you like a manager.  It sounds harsh, but think about managers that you have had in the past that you didn’t respect.  What did they do, or rather – what didn’t they do?

Company Liability

Now comes the “HR” spin to the situation.  Many managers dismiss the seriousness of backing out of a termination and think “well, we still have a case.”  If you have worked with your HR department on a progressive discipline plan and then reached the decision to terminate after solidifying your case, giving the employee “one last chance” (again) will tell any third party (such an Unemployment) that it “really wasn’t that bad” after all.  For example, if you are terminating an employee for repeated violation of company policy (let’s say the attendance policy) and at termination you decide to give them one last chance to “straighten up,” the next time you decide to terminate them for the same reason flags will be raised as to whether or not this was a serious enough violation to terminate since, well, you let them get away with it so many times!

Some Employees Just Don’t Work Out

Bottom line: No matter how much you try and counsel or correct them, some employees just don’t care enough about themselves to make things work.  As the manager, your other employees depend on you to set the course for the department and keep morale up so they stay engaged and do the best job for you.  If you have come to the point where you know termination is the only answer, then you have already proven to yourself that “one last chance” won’t really change anything in the long term.  Part ways as amicably as you can and turn your focus back to the employees you have that are giving you 110%.  Once you get past the initial sit-down talk with them, you will see that is was the best thing you could have done for both parties.

Medical Marijuana: How Does It Affect Your Workplace?

Today officially marked the first day that medical marijuana is now available for sale in the state of Illinois…so now that it is really a reality, what does that mean for employers?

  • Will there be this huge influx of issues to address and deal with?
  • How does this affect our workplace safety?
    Do we have to re-write our Employee Handbooks with a new drug and drug testing policy?

Before your mind starts spinning in circles, let’s look at some facts to help answer those questions:

There are over 20 states that currently have some sort of legislature in place concerning the legal marijuana for medical use only.  In Illinois, the Compassionate Use of Medical Cannabis Pilot Program Act (“Cannabis Act”) allows patients diagnosed with one of 42 specific, debilitating medical conditions to use medicinal marijuana.  Examples include: cancer, glaucoma, positive status for HIV, AIDS, hepatitis C, Crohn’s disease, rheumatoid arthritis, closed head injury, post-concussion syndrome, Parkinson’s disease, MS, severe fibromyalgia, and spinal cord injuries.

State medical marijuana laws do not completely legalize the manufacture, distribution and possession of marijuana, which remains illegal under federal law…and here is where some of the hype and confusion needs to be talked about.

To be a part of this program, patients have to go through an application process.  Only persons aged 18 or over with specific medical conditions may apply and they may not have a felony drug conviction in his or her background.  Once they are “approved” they are issued a “Registry ID card” that then allows them to purchase medical marijuana from one of the registered dispensaries.

There are certain jobs that the Cannabis Act prohibits from being a part of the program: law enforcement officers, firefighters, correctional officers, school bus drivers or anything requiring a commercial driver’s license.

Those that qualify are not allowed, by law, to use the medical marijuana at their place of employment or used in public or in any location where smoking tobacco is forbidden by the Smoke Free Illinois Act.  The Act pretty much restricts use of medical marijuana to the approved patient’s personal residence.

The Cannabis Act does NOT prohibit an employer from enforcing a policy concerning drug-testing, zero tolerance or a drug-free workplace.  It also does not permit any person to engage in any task while under the influence of medical marijuana that could potentially impair their ability to carry out their job or endanger the safety of themselves or others in the workplace.  The best way to look at this: The Employer should treat a medical marijuana patient like any other employee who is on prescribed medication.

Employers can accommodate a worker’s medical marijuana use but aren’t required to.  Since medical marijuana remains an illegal drug under Federal law, its use is not protected under the Americans with Disabilities Act (“ADA”).  It will come down to how you, the Employer, will want to handle the situation…however, the key to remember is to create consistency in your decision or new policy.  Risk and liability are the two issues that the Employer will need to personally identify to determine the best course of action.  Many employment attorneys have been reporting that most employers are not changing their workplace policies, in particular those with a Drug-Free Workplace policy…and for the most part, the way the Act appears to be written there isn’t a quick need to.

What the Cannabis Act does make clear is that an employer may not penalize a valid medical marijuana card-holder solely because he or she is in the registry and is entitled to use cannabis as medicine.  The employer can discipline an employee for use while on the job if it violates company policy or adversely affects their work performance (including safety issues).

The issue that is left outstanding and should be a concern at the back of everyone’s mind: Workers’ Compensation.

How the insurance companies intend on dealing with employers with employees covered under The Cannabis Act seems to still be unsure…and this is where employers may run into issues.  This will not only potentially affect renewal rates (depending on whether or not the use of medical marijuana comes up when a case is filed) but on how the employee may face challenges in receiving benefits or compensation as a result.  While medical marijuana is not the first “medication” with side effects that can cause performance problems for an employee (and one would assume the same standards would apply), its not clear if the insurance companies will treat them the same…so this is an area to watch as things continue to unfold.

Bottom line:  The introduction of medical marijuana isn’t as bad a topic as we may have braced ourselves for.  Yes, there are some considerations to be made but, for the most part, provisions are in place to protect the employer and the employee.  Don’t rush out to change policies based on the hype or fear that has been spread around….but also don’t wait until one of your employees comes to you with their new Registry ID card.

Talk about it now – how you would handle it and how you want to handle it – and everything can still continue as “business as usual.”

Bring Back The Pink Slips!

Back in the days of the Personnel Department, the “pink slip” was a notice included with the employee’s paycheck notifying them that their employment had ended, either by termination or layoff.  No one knows when this practice came into being, or how it was even labeled with the color pink.  Even Peter Liebhold, a curator at the National Museum of American History, spent ten years searching for literal evidence of the pink slip as a firing device and came up empty.  But regardless of who or how it started, it became a common-place term that many employees knew of and feared.

Should we literally bring back a pink piece of paper that says “You’re Fired” as a method to separate or terminate employees?  No…but we should do something similar for much better reasons.

In some states, such as California, there are laws in place that require an employer to give their workers a written explanation for their termination when they are being informed.   The employee is clearly told the violation or reason behind the company’s decision so there is no “speculation” or “ulterior motives” as to why the employee was separated from the company.  The assumption is that the written explanation includes concrete reasons, including facts and dates, to clearly support management’s decision.

But, what about those states that are “At Will” and technically don’t require notice to terminate an employee or provide a reason?  You are not as protected as you think.  Remember, if the employee believes that they were unjustly terminated, discriminated against or their firing was a form of retaliation from their manager, they will have ground to file not only an Equal Employment Opportunity Commission (EEOC) complaint but also a lawsuit for unlawful termination.

Some employers fear giving a written explanation for termination of employment.  They worry that somehow the employee will find a way to use it against them so they feel its easier – and safer – to simply cut ties and leave it at that.  Except, sometimes it doesn’t end that easily.

So, why “bring back the pink slip?”

Bottom line: You are creating a final piece of documentation that will be valuable if you have argue why a termination should be help both in court and with unemployment (if terminated for cause).

The best reason, however, is it serves as a final “catch” for management and HR to ensure that the process was handled correctly and legally.  Think about it – How many managers have terminated employees in the heat of the moment?  At that point, words are exchanged – words that can later be used against the company.  Add to that, if the employee had never been previously counseled or reprimanded but the manager simply let his frustrations build up and explode, then unemployment (and the courts) will argue that the company didn’t do enough to address or correct the employee’s performance problems.  All of which will work AGAINST the employer…even if overall it was the right and financially responsible action to take.

Before you do anything!…Have a sit down discussion with the Supervisor and review all documentation in the employee’s file.  If the employee has never had a performance issues and now suddenly the supervisor wants to terminate, you are going to have quite the uphill battle in defending your decision in court.  Claims of “retaliation” or “personality conflict” may be raised in that case leaving the courts to side with the employee.

If you feel you have a strong enough case and all signs point to terminating the employee, then put together a Letter of Termination (or Termination Notice) to present to the employee when you are letting them go.

What do you include in the Termination Notice?

  • You want a clear statement stating the reason why the employee was terminated. Don’t beat around the bush or try to appear vague thinking that will protect the company.

Take a look at your Employee Handbook.  What are some of the reasons cited as to why an employee can be terminated?

For example: Excessive tardiness or absence, Neglect/misuse of company property, Intentional violation of safety rules, Excessive personal use of phones, Taking extended breaks, Intentional violation of policy, Use of abusive language, Drug or alcohol use on the job, Substandard work or performance, Insubordination or refusing to follow orders, Conduct which disrupts business activities, Harassment of fellow employees/customers/suppliers, Deliberate injury to another person, Conviction of a crime. 

  • List previous disciplinary actions or verbal discussions that were held with the employee. You want to remind them the steps the company took to work with them to correct the problem…and word it in that manner when you cite the information:

“We have previously attempted to address and work to correct this issue in the past….(list dates)”

  • List any benefits or pay information still due to the employee:
  1. If you are paying them any severance or unused vacation time, make sure you note it here.
  2. Let them know when their final paycheck will be processed (next payroll date) and how they will receive their check (mailed or they can pick it up).
  3. Let them know when their health benefits will expire (immediately or end of month) and what options they have to enroll in COBRA.
  4. And finally, give them information on how to withdraw or rollover any 401k money they have.

Times have changed and employees are more informed of their rights.  Your best defense – is a strong offense…and that means taking the time to make sure you have a process in place to protect the company.  No one likes to terminate an employee, but there will be times that it becomes inevitable.  Thinking proactively will help eliminate potential employee issues after the fact, so if your company isn’t already doing so – revisit your termination procedure and see how adding this can benefit you in the long run.