Performance Matters: Recalcitrant Employees—Just What Are They Thinking?

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A client recently called wanting to know if she could send a non-productive employee home because there was nothing for the employee to do. This employee provided a particular in-house service to the client’s clients, and when a number of clients cancelled morning appointments, the employee’s schedule was empty. Since the employee was paid by the hour, my client was looking to avoid having to pay the employee who was doing no work. While it was legally permissible to send the employee home and not pay her (and this may be permissible in your state, too, keeping in mind any “show up pay” or other state requirements), and that was certainly an attractive option in these interesting times, I thought it might be better from a business viewpoint to try something else. I suggested that the employer have the employee take actions to fill her schedule, or do other tasks that benefited the employer. (Yes, employment lawyers often blend purely legal advice with pragmatic business advice to help our clients get the show on the road.) My client sighed in exasperation and said that the employee will not do that. In fact, later, the employer found the employee chit-chatting with other staff, distracting them from their tasks, instead of speaking with her supervisor about what else she could be doing when her schedule dried up.

Just what are such employees thinking, especially in these troubled times? You would think that employees would want to make themselves invaluable to their employers, rather than expendable. Need I mention that this client is looking at doing lay offs and guess whose name already came up in that discussion?

Since I just represent employers in their dealings with their employees, one of the things I find I repeatedly need to remind my business clients is that they have rights, too—particularly with regard to their ability to expect their employees to do their jobs, be team players, contribute to the forward progress of the business, and to do so with a generally positive attitude. Sometimes the human resources professionals I work with are so tied up in other emergencies that they forget to empower their managers and to establish a workplace culture where production and performance is expected. Of course you want the environment to be friendly and you want your employees to look forward to coming to work; however...they are coming to work. When employers fail to ensure that their employees are doing their jobs, and fail to document lack of performance, they can set themselves up for difficult legal situations down the road. When that employee who demonstrates poor performance is finally terminated without a shred of evidence that she failed to do her job, or that the employer took actions to correct the situation, you can be sure a discrimination charge is on the horizon.

You’ve got a product to deliver to your customers or a service to sell to your clients. You do not have to tolerate those who are lacking performance and are only pretending to be part of your team. Employers are looking for actions to take to cut costs. One area often overlooked is getting your current employees to focus on doing their jobs, and not accepting back-flash and insubordination. After all, managers have rights too—the right to get the job done.

Contributor:   Devora Lindeman

Devora L. Lindeman is a Partner with Greenwald Doherty LLP, a labor and employment law firm exclusively representing management in relationships with employees and unions, with offices in New York, New Jersey, and Connecticut. She provides management training to employers and employer associations on these and other topics. Lindeman joined Greenwald Doherty in 2007 with many years experience in management-side labor and employment law. Previously an attorney at Proskauer Rose, LLP, she divided her practice between human resources consultation and court and agency litigation. Lindeman spent a number of years at a labor and employment boutique firm prior to that. Since she has a business background, she understands employers’ needs and works with them to creatively solve employee issues. Much of her practice involves counseling clients on issues that arise daily, such as responding to workplace discrimination or harassment complaints, dealing with wage and hour compliance issues, accommodating individuals with disabilities, dealing with leave laws such as the Family and Medical Leave Act and routinely addressing the other myriad of situations that arise on a daily basis when one has employees. She also reviews and drafts employee policies and handbooks and assists employers with employee agreements, such as non-compete and confidentiality agreements, as well as those involved with reductions in force. Lindeman lectures to trade and business associations on various employment law topics.

Lindeman received her undergraduate degree from Sarah Lawrence College and graduated from Rutgers School of Law—Newark with Highest Honors. During law school, she served as the Notes & Comments Editor for the Rutgers Law Review. On graduation, she was inducted into both the Order of the Coif and the Order of the Barrister. She then clerked for the Honorable Stanley R. Chesler, U.S.M.J., in the District of New Jersey. Lindeman has practiced management-side labor and employment law ever since. She is admitted to practice in New York and New Jersey.

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Report Abuse   HRadvance 09/08/2009 10:17:14 AM EDT Good article. nice job. Replies (0) Post a reply Sign in or Sign up to post a comment

Report Abuse   HRadvance 09/08/2009 10:16:58 AM EDT Good article. nice job. Replies (0) Post a reply Sign in or Sign up to post a comment