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DRILLING A DRY HOLE –
HOW TO DEAL WITH UNPRODUCTIVE
OR PROBLEMATIC EMPLOYEES:
The Story of Sherm
2014 Oklahoma HR State Conference & Expo
Downtown Tulsa Convention Center
May 9, 2014
CROWE & DUNLEVY
Michael R. Pacewicz
[email protected]
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EMPLOYEE 1
Sherm
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Sherm is an “administrative assistant” assigned to the
Administrative Services group for an employer with 147
employees in Oklahoma. However none of the 146 other
employees of the company really know what Sherm does
every day and no one really seems to know who supervises
Sherm. Sherm has worked for the company for
approximately 5 years and receives a raise every year during
salary review because Sherm has never really done anything
wrong. Recently, the company hired a new Human
Resources Manager who decided to evaluate all of the job
positions for the company. When the new HR Manager asked
what Sherm did all day, no one was able to give her a clear
answer. The new HR Manager has decided to do something
about Sherm.
What should she do first?
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JOB DESCRIPTION
1.
Tailored to job functions
2.
3.
4.
5.
Essential and non-essential functions
Physical demands
Supervisor/place in hierarchy
Reviewed once a year and revised as
necessary
Consultation with employees in that
position
6.
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EMPLOYEE 2
Sherm
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Sherm is often late arriving for work, takes long lunches and
is always 1 point away from termination pursuant to the
company attendance policy. However, since no one really
monitors Sherm’s work schedule, no one is really sure how
many tardies or absences he really has. In addition, some of
Sherm’s absences were for a medical condition and some
were for taking care of a family member. Also, the new HR
Manager discovers that Sherm has occasionally had too many
tardies and absences pursuant to the company attendance
policy, but was not disciplined or terminated. The new HR
Manager decides to do something about Sherm.
What should she do?
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A. “No Fault”: Attendance Law’s “Trap”
1. Tracking employee attendance is not simply
about counting heads.
2. No-fault = simple to administer but
potentially very costly in court.
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A.  “No Fault”: Attendance Law’s
“Four-Letter Word”
3. Federal and state law require that certain
absences be treated as “excused”, eg.,
a. FMLA
b. ADA
c. USERRA
d. Pregnancy Discrimination Act
e. Workers' Compensation Act
f. Jury Duty
4. Require all attendance-related disciplinary
action to be approved by Human Resources
5. Consistently apply and follow attendance policy
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EMPLOYEE 3
Sherm
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The new HR Manager decides to more closely monitor
Sherm’s performance. In doing so, she discovers that Sherm
is not productive, often makes mistakes and does not get
projects done on time. In further investigating with those that
have performed work with Sherm, she learns that these
problems are not new. The new HR Manager would like to
terminate Sherm for poor performance, but finds that his
previous performance evaluations have all shown that he
exceeds expectations. The new HR Manager decides that
Sherm’s performance is unacceptable and wants to do
something about it.
What should she do?
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A. General Problem Areas of Performance
Appraisals.
1. Subjective evaluations are suspect
in discrimination cases brought under
Title VII, ADEA, and state statutes.
2. General appraisal forms which grade
on items which are not specifically
related to the job are suspect.
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General Problem Areas of Performance
Appraisals.
3. Evaluations often suffer from
"grade inflation."
4. Evaluations may contain
inappropriate remarks.
5. Evaluations may form evidence of
an implied contract to discharge
only for cause.
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General Problem Areas of Performance
Appraisals.
6. Unless properly written and
distributed, evaluations can be
evidence of discrimination or other
forms of liability.
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The five elements of a proper
disciplinary warning.
1.
2.
Tell the employee what is wrong.
Tell the employee how to get it
right.
Tell the employee how long the
employee has to get it right.
Tell the employee what will happen if
the employee does not get it right.
Have the employee sign the form and
give the employee a copy.
3.
4.
5.
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Suggestions for a Legally Defensible
Evaluation System.
1. Develop rating forms which are job
specific.
a. Measure observable performances
rather than character traits.
b. Weigh the factors.
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Suggestions for a Legally Defensible
Evaluation System.
2. Give specific written instructions and
training to supervisors concerning the
evaluation criteria.
3. Have a two-tiered evaluation system.
4. Allow for employee review comment
and appeal.
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EMPLOYEE 4
Sherm
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The new HR Manager decides that she has had enough and
decides that Sherm should be terminated. She finally
convinces the President of the company to terminate Sherm.
Her conversation with the President was interesting because
the President had no idea who Sherm was. On the day Sherm
is to be terminated, the HR Manager calls Sherm in the
Administrative Services department and asks him to come to
her office. On his way to her office, Sherm falls down the
stairs and breaks his ankle. Sherm is sent to the emergency
room and the treating physician states that he will be off work
for six weeks. The HR Manager never had the chance to
terminate him prior to Sherm being taken to the emergency
room.
What should the HR Manager do now?
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A. General suggestions:
1. Document promptly while memories
are fresh.
2. Focus on significant incidents and
behavior that reflects on performance
or conduct.
3. Focus on the facts while avoiding
opinions about personal characteristics
that may be the cause for poor employee
performance.
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A.  General suggestions:
4. Obtain the employee's side of the
story.
5. Apply documentation uniformly
across all employees to avoid an
impression of "building a case”
against a particular employee .
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EMPLOYEE 5
Sherm
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Sherm was initially scheduled to be off work for 6 weeks.
However, 6 weeks has come and gone and no one has heard
from Sherm or his treating physician. In fact, since no one
really missed Sherm, most of his co-workers forgot that he
was off work. However, 8 weeks after the injury, the HR
Manager is filling out a form and realizes that Sherm is still
being paid TTD. The HR Manager cannot figure out why
Sherm is still off work. She wants to quit having to pay
Sherm TTD.
What should she do?
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Causes of Malingering
1.  Lack of effective and organized approach
2.  Lack of communication between doctor
and employer
3.  Lack of communication with employees
4.  Disincentive to return to work
5.  Passage of time
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Practical Suggestions
1.  Proactive approach and corporate attitude
2.  Aggressive Workers’ Compensation
policies
a.  Job descriptions
b.  Prompt and effective medical treatment
programs
c.  Return to work and light duty programs
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3.
Prompt and Continuous Handling of
Claims
a. 
b. 
c. 
d. 
e. 
f. 
g. 
h. 
Investigation and document
Promptly determine if compensable
Respond to medical requests
Surveillance
Form 11 as soon as released
Court-appointed IME
Follow-up with claims adjustor
Case management
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4.  Prompt and Comprehensive Medical
Treatment
5.  Notify to Return to Work
6.  Vocational Rehabilitation: Train Them to
Work Elsewhere
7. Write the Letter – Return to Work
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EMPLOYEE 6
Sherm
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The HR Manager finally contacts Sherm’s treating physician,
and she is told that Sherm can be released to return to work
with restrictions. The restrictions include the amounts that
Sherm can lift as well as climbing stairs. The HR Manager
knows that she can accommodate Sherm’s restrictions, but
she really does not want to bring him back to work.
What should the HR Manager do?
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“Disabled” Under the ADA
1.  An individual is “disabled” under the
ADA if he or she:
a.  Has a physical or mental impairment
that substantially limits one or more
major life activity;
b.  Has a record of such an impairment;
or
c.  IS REGARDED AS HAVING
SUCH AN IMPAIRMENT
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Do not create a disabilities issue if one
does not already exist by:
1.  Assuming an employee has a medical
issue
2.  Inquiring about a medical issue
a)  “Is there something wrong with you?”
b)  “Are you sure you can do this job?”
c)  “Why are you absent so much?”
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Better Practice
1.  Present job description – ask if employee
can perform essential functions.
2.  Address performance issues by objective
means without making a judgment about
physical/mental ability to perform job.
a)  You are not satisfying your quota –
must satisfy quota or face discipline
b)  You are violating attendance policy
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AFTER RETURN TO WORK
1. 
2. 
3. 
4. 
5. 
Light duty/modified duty
Check with employee to ensure OK
Document all performance discipline
issues
Avoid constructive discharge
Consider ADA/FMLA issues
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EMPLOYEE 7
Sherm
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Sherm returns to work subject to specific work restrictions
and subject to specific work requirements. However, it
becomes apparent very quickly that Sherm is a poor
performer and a waste of the company’s money. The HR
Manager decides once again that she would like to terminate
Sherm.
Can she do so?
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Protection Against Retaliation is
Generally Available:
1.
2.
To employees who exercise their
rights under the relevant act including
complaining internally or externally about
an employer's violation of the act;
To employees who aid, assist, or
support the complaint process or
investigation;
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Protection Against Retaliation is
Generally Available:
3. To applicants or ex-employees;
4. Even when the underlying
complaint is invalid.
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What Actions May Be Considered
Adverse for the Basis of a Retaliation
Claim?
1.
An employment related action may
be considered adverse if it would
be enough to discourage a reasonable
employee/applicant/ex-employee under
the circumstances from bringing or
supporting a claim.
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What Actions May Be Considered
Adverse for the Basis of a Retaliation
Claim?
2.  An action outside the workplace,
regardless of whether it would affect
employment may be considered adverse
if it would be enough to discourage a
reasonable employee/applicant/
ex-employee under the circumstances
from bringing or supporting a claim.
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What Actions May Be Considered
Adverse for the Basis of a Retaliation
Claim?
3. Petty slights or minor annoyances
4.
are not enough.
The subjective evaluation of the
complaining employee is not
determinative.
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Practical Pointers.
1. Prohibit retaliation in your written
policies.
2. Always have legitimate business
reasons for any employment action.
3. Evaluate each action based upon the
specific facts and circumstances.
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Practical Pointers.
4.
Documentation of disciplinary
actions.
Uniform application of policies.
Multiple layers of review.
Review of post-employment
actions.
Legal review.
5.
6.
7.
8.
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Presented by:
Michael R. Pacewicz
Crowe & Dunlevy
(918) 592-9847
[email protected]
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