by Alison Green
Make clear why the joint agreement would be an attractive option. For instance, you might give the person more time to look for her next job than she would have otherwise, and she can say that she’s still employed at your organization while she’s looking. Be honest about your self-interest as well. It’s okay to explain that this solution helps you because it prevents a vacancy in the role. In the case of a long-time, once-valued employee whom the organization has outgrown, it could be appropriate to soften this approach and steer the person away from the improvement process option altogether if you believe it’s unlikely to be successful. For instance, you might still offer the two options but say something like, “To be honest, I’m happy to give you a chance to pursue the improvement plan option if you want to, but I would hate for it to turn your experience here sour. I would much rather work together on a transition that meets your needs and ours.”
Give the staff member an appropriate amount of time to reflect and come back to you with her decision. Set a deadline for when you would like an answer—no longer than a week, since you want to make moving forward a priority.
If the staff member chooses to pursue an improvement plan under your progressive discipline policy rather than agree to a transition plan, be sincere in your willingness to give her a chance to improve.
ISSUES SURROUNDING LETTING AN EMPLOYEE GO
What to Tell the Rest of Your Staff
After letting a staff member go, managers often wonder how transparent to be with other staff members about the circumstances surrounding the employee’s departure.
Your staff will generally understand that you’re not going to share every detail with them in cases like this. You might simply let them know, “August 4 will be Carla’s last day.” In many cases, the departing staff member might send out a message herself. For instance, the employee might explain that she’s leaving to pursue jobs more closely aligned with her interest in communications, or that she’s taking time to study for the LSAT. However, do be sure to share logistical details, such as how key responsibilities will be handled while the search for a replacement is ongoing.
Will a Firing Lower Morale Among the Rest of the Staff?
You might wonder whether a firing will lower morale among the rest of the staff. In fact, you will find that just the opposite occurs! In almost every case, keeping low or mediocre performers on staff is an enormous morale drain for high performers. If you’ve ever worked somewhere where shoddy work was tolerated, you know how frustrating and demoralizing it can be when a manager doesn’t do anything about poor performers.
It’s likely that your staff has spotted the problems and will be relieved when they are resolved. Good people want to work with other good people, and they want to know that their employer is discerning when it comes to results. Their quality of life goes up when they work in environments where standards are high, accountability is clear, and they can count on their coworkers to pull their own weight.
Even when employees are friendly with the staff member who is being let go, most people can separate personal affection from professional assessments. In fact, one client we worked with managed a man and a woman who were romantically involved. When he had to fire the man, the manager worried about how his girlfriend would react. Would she continue working for a boss who had fired her boyfriend? Would her morale take a hit? But after the firing, the female employee approached the manager in confidence and told him that she agreed with the decision to fire her boyfriend.
As long as you are open with your staff about how you address performance problems so that they understand you don’t make arbitrary personnel decisions, you will have a confident, motivated staff. Keep in mind that understanding is key. If firings occur without a general understanding on staff that employees are clearly warned and given a chance to improve before being let go, you risk creating a climate of fear where employees worry that they could be terminated at any point. So it’s important to be open and honest with your staff about how problems are handled.
Unions
Although working with unions is beyond the scope of this book and very few nonprofits are unionized, the same principles apply. Hold a high bar and address performance problems clearly and forthrightly, even when your ultimate authority to fire may be more difficult to exercise or employees may be entitled to more formal processes than what is discussed here.
Legal Issues
You don’t generally need to speak to a lawyer before dismissing an employee, but there are a few specific situations where you should consider consulting a lawyer in advance.
For at-will employees, that is, those without a specific employment contract (the vast majority of your employees), legal issues typically arise when there is evidence of illegal discrimination related to the employee being a member of a protected class (protected classes revolve around traits like age, gender, religion, race, or sexual orientation). When potential for such evidence exists, talk to a lawyer before taking action.
THE RIGHT KIND OF TURNOVER
Good to Great author Jim Collins notes that top-performing companies don’t have any more or less turnover than other companies do. What differs is when the turnover occurs. He found that at top-performing companies, people either left very soon after starting or stayed for a long time. The best companies “did not churn more, they churned better,” he writes. Great leaders “adopted the following approach: ‘Let’s take the time to make rigorous A+ selections right upfront. If we get it right, we’ll do everything we can to try to keep them on board for a long time. If we make a mistake, then we’ll confront that fact so that we can get on with our work and they can get on with their lives.’“ (J. Collins, Good to Great [New York: HarperCollins, 2001]).
In particular, you should watch for situations where the following could pose issues:
Direct comments related to a protected class. Remarks about an employee’s age, gender, race, religion, or other protected status, even when meant as a joke, can give rise to legal claims. For instance, a birthday card delivered to a fifty-year-old employee about the horrors of aging could be used as evidence for an age discrimination claim.
Disparate treatment. Evidence that similarly situated employees are treated differently can also give rise to claims. What “similarly situated” means is a complicated legal issue, but be careful if you are treating employees of comparable tenure, seniority, and performance level differently, particularly when they differ in race, gender, sexual orientation, disability, and so forth.
Pretext. If you give false statements about why you are firing someone, a jury might infer that you were covering up real reasons that were actually discriminatory. Most commonly, this occurs when you have been giving someone positive feedback along the way (even if you didn’t really mean it) and then, feeling that you don’t have enough of a record to cite your real reasons, use a rationale that is not the actual cause for the person’s dismissal. If the person argues that your true reasons were discriminatory ones, this sort of cover-up can make it much harder to defend yourself.
Retaliation. If an employee has raised a complaint involving some kind of legal issue, such as a concern about sexual or racial harassment or about financial wrongdoing within the organization, the firing can look like retaliation, even if it is unrelated to the complaint.
In addition, situations that involve disabilities, including mental illness, or family or medical leave can raise tricky legal issues.
When one of the situations described here arises, it does not mean that you cannot dismiss an employee. But it does mean that you should proceed with caution and speak to a lawyer first. As a general rule, speak with a lawyer in any situation in which you are in doubt.
In addition, if you are concerned the employee you are firing may be litigious, be extra sure to document the reasons for the termination. This can be as simple as a detailed memo before or after the firing that sets out the reasons for the decision. The goal is to be able to demonstrate that you had perform
ance-based reasons for the firing if the employee later alleges your reasons were discriminatory.
KEY POINTS
Addressing performance problems and moving mediocre or low performers out of your organization is about a fundamental commitment to having great people.
Most managers don’t remove low or mediocre performers quickly enough or frequently enough, and their organizations suffer as a result.
The bar you use to assess performance should not be “the best this particular person could do,” but rather a vision of what a truly high-performing staff member would be doing in the role.
Make your assessment of an employee’s performance independent of how difficult the next step may be to execute. Pretend that you have a red button that, if pushed, would lead to your staff member’s being replaced instantaneously. Would you push it?
When you have a serious performance problem, you can address it through the more traditional path of progressive discipline or you can coach out the employee through a direct conversation.
Progressive discipline is a series of increasingly serious warnings, culminating in dismissal if the problems aren’t fixed. Typically there are three stages: an informal verbal warning, followed by a formal warning, followed by termination if the employee doesn’t make sufficient improvement. At each point, the employee can make the necessary corrections; if she doesn’t, you move to the next stage. Each step foreshadows the next, so that the staffer is clear about where she stands and isn’t surprised by negative consequences.
In coaching out, the aim is to convince the employee that continued tenure in the role doesn’t make sense and agree on a smooth transition plan. The key is to talk honestly and collaboratively and recognize that the employee may simply be miscast in the role.
Additional Reading
Marcus Buckingham and Curt Coffman, First, Break All the Rules: What the World’s Greatest Managers Do Differently (New York: Simon & Schuster, 1999), especially “The Art of Tough Love” (pp. 206–212).
1 Marcus Buckingham and Curt Coffman, First, Break All the Rules: What the World’s Greatest Managers Do Differently (New York: Simon & Schuster, 1999). Nonetheless, from a legal perspective, progressive discipline procedures should be guidelines, not promises. You need to be able to act more quickly in unusual situations. Note the language in the sample policy in Tool 9.5.
TOOL 9.1
SAMPLE PROGRESSIVE DISCIPLINE POLICY
We strongly advise having any written progressive discipline policy reviewed by a lawyer, so that you do not inadvertently create a legal commitment to following the steps in this tool in every situation. You want to retain the flexibility to act outside your progressive discipline policy in particularly egregious or unusual situations, so be careful not to create a binding commitment.
Save the Trees is committed to a work environment in which employees receive clear messages when their performance needs to improve. We generally use a policy of progressive discipline to address performance concerns. Under this policy, employees who are not performing at the level they need to typically receive an informal verbal warning, followed by a formal warning and written improvement plan, followed by termination where sufficient improvement has not been made.
However, Save the Trees is an at-will employer and while it will generally take disciplinary action in a progressive manner, it reserves the right, in its sole discretion, to decide what disciplinary action will be taken in a given situation, including termination without prior warnings.
TOOL 9.2
SAMPLE SCRIPT FOR INFORMAL PERFORMANCE WARNING
The employee here is a staff attorney whose management of casework has been poor.
As I mentioned in my e-mail about our agenda, I wanted to talk about your performance lately.
To be frank, your performance has fallen short of what I need from you. I have concerns in two big areas: the quality of your written work and your interactions with our activists.
Frame big picture concerns at the start so the employee knows what to expect.
In terms of written work, I’ve been having to rewrite significant portions of your draft filings in order to get them to where they meet our standards. For instance, on last week’s reply to the motion to dismiss, your summary of the argument section was at least a page too long and didn’t mention one of our three major points. In addition, the transitions from one section of the argument to another were abrupt and disjointed, and in at least two places, your parentheticals summarizing holdings were inaccurate.
Provide specific examples of where the person is falling short.
So that’s the written work piece. On the activist front, we continue to hear feedback that you aren’t responsive enough when they try to get in touch with you.
I’d love to get your perspective on what’s causing these problems. On the writing, do you have any sense of why the product hasn’t been strong?
Probe for insight from the employee. It’s possible there could be an outside factor affecting performance that you should know about.
[We assume for this sample that the attorney says that she has been too busy to devote enough time to ensuring a quality product.]
Be empathetic as appropriate, but hold firm on the standard needed.
I know what you mean about writing under pressure and without enough time. Unfortunately, though, I don’t think the workload is going to get any lighter, and others on staff are handling comparable amounts of work. I could see, though, how better planning in advance might lead to a better product. Should we talk about how you might do that, working backward from the deadline to ensure you don’t hit a time crunch?
[The manager and staff member agree that better advance planning would help and that the staff member will send the manager a quick e-mail after each new piece of writing is assigned in which she lays out her time line for producing a draft.]
So better planning may help, and I’m happy to be a resource by looking over your initial time line. Over time, though, you’ll need to be able to do that independently because I wouldn’t be able to supervise everyone that closely in the long run.
Offer help, but make it clear that your staff member must be self-sufficient in the long run. Be specific about next steps where appropriate.
Stepping back from this, I want to be clear about my expectations, and I also want to make sure we’re both on the same page about what needs to happen and what the potential consequences are.
Going forward, I expect you to begin producing drafts of written documents that are ready to file with minimal editing by me, and by that I mean thirty minutes or less. Among other things, the arguments need to be clear, concise, and well supported and flow smoothly from one point to another.
Lay out a clear, specific bar that must be met.
In terms of activist relations, as you know, we promise a response time of no longer than two days. I know that can be hard when you have a lot of work with deadlines, but again, it’s a bar we’re committed to meeting and we can’t have you continue to miss it.
Clearly identify next steps.
In the short term, I want you to redraft the brief you sent me last night and have a stronger version to me by the end of the day tomorrow. I’m also going to put it on my calendar for us to check in on your performance in three weeks. Assuming it improves and you sustain the higher level, then we’ll just roll forward. If it doesn’t, then I’m going to have to put you on a formal written improvement plan.
A formal written plan lays out areas for improvement and a time line, and as with this discussion, if you improve and sustain that level, things go forward. If you don’t improve, then at that point we would have to dismiss you. So my concerns here are serious. I think you have a great deal of potential, but I need you to be performing at a higher level. Given our workload, I need someone in your position who can create strong written documents and respond to activists promptly and reliably. If you can’t meet that bar, we would have to find someone else who can.
Be straightforward and clear about consequences.
Do you have any questions about how we’re moving forward?
TOOL 9.3
SAMPLE FORMAL PERFORMANCE WARNING IN WRITING
The employee here is an assistant who hasn’t been staying on top of her work.
Rachel,
Per our discussion, I wanted to capture how we’re moving forward. As I mentioned, I realize that you’ve been trying very hard, but unfortunately your performance isn’t where I need it to be, and without significant improvement I will have to let you go. That improvement needs to happen in the next two weeks, and then it needs to be sustained going forward.
Be clear from the beginning about where things stand in the process, and reiterate that if she doesn’t improve, the consequence will be dismissal.
My hope is that you will meet the expectations laid out in this plan and that I will be fully satisfied with the job you are doing. I’ve tried to be clear and specific about what these expectations are; please let me know if you have any questions about what follows, so I can clarify.
These are the main areas in which I need to see improvement:
1. 100 percent follow-through, in a timely fashion
I need you to take care of all of the items including meeting requests, issues raised by voice mail or e-mail, research requests, and other tasks that are part of the general course of business. As we discussed, this truly needs to be 100 percent. Because of the volume of issues, I can’t check back in on every item, so I need to trust completely that when I hand you an item, it is as good as done. Everyone is human, and mistakes do happen from time to time, but over the next two weeks (and in general over any comparable time period) if more than one item slips through the cracks, then I’d deem that to be falling short of expectations.
