Introduction

• What Is Progressive Management?
• The Benefits of Employee Performance Management
• Getting Results by Improving Performance
• Avoiding Legal Trouble
• Who Should Read This Book
• How to Use This Book

Part I: An Overview of Employee Discipline

1. Performance Management Basics

• What a Smart Discipline Policy Should Look Like
• How Performance Management Works
• Using This Book With Your Company's Policy

2. Principles of Effective Performance Management 

• Principle 1: Your Goal Is Engagement -- Not Termination
• Principle 2: Discipline Should Be Proportionate
• Principle 3: Have the Facts at Your Fingertips
• Principle 4: Listen to Your Employees
• Principle 5: Collaboration Is the Key to Success
• Principle 6: Be Flexible Within a Consistent Framework
• Principle 7: Some Employment Relationships Don't Work Out

3. Avoiding Legal Trouble

• Strategy 1: Don't Compromise At-Will Employment
• Strategy 2: Be Consistent
• Strategy 3: Be Objective
• Strategy 4: Don't Retaliate
• Strategy 5: Make Reasonable Accommodations for Employees With Disabilities
• Strategy 6: Be Careful When Disciplining for Absences
• Strategy 7: Deal With Dangerous Situations Right Away
• Strategy 8: Keep It Confidential
• Strategy 9: Remember: You Represent the Company
• Strategy 10: Document Everything
• Build Your Skills: An Overview of Employee Corrective Action

Part II: Is It Time to Intervene?

4. Identifying Potential Problems

• Knowing What to Look For: The Three Types of Employee Problems
• How to Spot Employee Problems

5. Deciding What Action to Take

• Is Discipline Appropriate?
• Special Consideration for Remote Workers
• How Serious Is the Problem?
• Choosing the Right Response
• Build Your Skills: Is It Time to Intervene?

Part III: Smart Performance Management Skills

6. Why Performance Management Is Hard

• Understanding Your Emotions
• Accept the Challenge

7. How to Discuss a Performance Problem With an Employee

• Prepare Your Opening Statement
• Set the Tone
• Engage in Active Listening
• Adapt to New Infromation
• Agree on an Action Plan

8. Smart Ways to Deal With Difficult Employee Reactions

• Emotional Reactions
• Masking Reactions

9. Smart Documentation

• The Benefits of Documenting Discipline
• Guidelines for Effective Documentation
• Informal Documentation
• Formal Documentation, Step by Step

10. Smart Collaboration: Involving the Right People at the Right Time

• Involving Management
• Involving Human Resources
• Involving Legal Counsel
• Involving Other Employees
• Build Your Skills: Smart Discipline Skills

Part IV: The Performance Management Steps

11. Step 1: Coaching

• What Is Coaching?
• To Coach or Not to Coach?
• Types of Coaching
• How Do You Coach?
• When Coaching Is Over

12. Step 2: Verbal Warnings

• What Is a Verbal Warning?
• When to Give a Verbal Warning
• How to Give a Verbal Warning

13. Step 3: Written Warnings

• What Is a Written Warning?
• When to Give a Written Warning
• How to Give a Written Warning
• Build Your Skills: The Disciplinary Steps

Part V: If Performance Management Fails

14. Termination

• Is It Time for Termination?
• Prepare for the Meeting
• The Termination Meeting
• Documentation

15. Life After Management Terminations

• Conduct a Process Evaluation
• Talk to Your Team
• Tell Others Who Need to Know
• Moving Forward
• Build Your Skills: If Performance Management Fails

Appendixes

A. Sample Forms and Checklist

• Sample Workplace Action Policy
• Sample Employee Action Notice
• Sample Discipline Action Checklist

B. Sample Documentation

• Sample Coaching Memo 1
• Sample Coaching Memo 2
• Sample Coaching Memo 3
• Sample Verbal Warning 1
• Sample Verbal Warning 2
• Sample Verbal Warning 3
• Sample Written Warning 1
• Sample Written Warning 2
• Sample Written Warning 3
• Sample Follow Up 1
• Sample Follow Up 2
• Sample Follow Up 3
• Sample Termination 1
• Sample Termination 2
• Sample Termination 3

C. State Laws

• State Laws Prohibiting Discrimination in Employment
• State Laws That Control Final Paychecks

D. Using the Interactive Forms

• Editing RTFs
• List of Forms and Podcasts

Index

Chapter 1

Performance Management Basics

What a Smart Policy Should Look Like.................................. 12

  Coaching................................................................................... 13

  Verbal Warning.......................................................................... 14

  Written Warning......................................................................... 14

  Termination................................................................................ 15

How Performance Management Works................................... 16

  Gather Information..................................................................... 16

  Assess the Severity ................................................................... 17

  Decide How to Respond............................................................ 19

  Prepare to Talk to the Employee................................................ 20

  Meet With the Employee............................................................ 21

  Document................................................................................... 24

  Follow Up................................................................................... 25

Using This Book With Your Company’s Policy....................... 25

A smart discipline policy gives managers a flexible structure for handling any employee problem, from poor performance to spotty attendance to misconduct. That’s why so many companies use some form of discipline to manage employees who are not meeting expectations. Because these systems vary in details, however, it can be tough to get a handle on exactly what effective discipline looks like and how it works.

Although they may go by different names, all discipline systems have a few things in common:

• They offer a range of disciplinary measures to respond appropriately to employee problems.
• They are systems of proportional response, in which the severity of the discipline depends on the severity of the problem.
• They give employees a meaningful opportunity to improve when problems arise, unless the employee’s behavior is so extreme that immediate termination is required.

This chapter explains what a good discipline policy should look like and how to effectively implement it. For those whose companies have already adopted a policy, we also provide some tips on using this book to stay safe and legal in conjunction with that policy.

What a Smart Policy Should Look Like

Before you can begin to use performance management to maximize employee performance, you need to know what a good policy should include. This information will help you understand the basic tools available to you. If your company doesn’t have a written performance policy, you can use this information, and the sample policy in Appendix A, to create one. (An electronic copy is available to download at this book’s online companion page; see Appendix D for the link.)

Effective performance systems offer the best of both worlds: They give managers the structure they need to treat employees consistently, with the flexibility to take unique situations and problems into account.

The following performance measures are typically available in most companies’ policies (although they might go by different names):

• coaching
• verbal warning
• written warning, and
• termination.

Coaching

In today’s workplace, most managers know that creating successful employees isn’t always about directing and controlling, it’s often about encouraging and developing. This process is often referred to as coaching. In this context, coaching is a manner of relating to and managing your employees to help them maximize their performance and build their skills and competencies. As such, coaching is not simply—or even primarily—a disciplinary measure, but is instead a management approach that emphasizes communication, collaboration, goal setting, mentoring, and assistance to help your employees realize their full potential.

In this book, however, we use the term “coaching” in a more limited sense, to refer to the first step of a formal performance system. Although you might be coaching your employees in the broader sense all the time, you are coaching under our definition only when you are using your collaborative and communication skills to correct a performance or behavior problem. While it requires the same set of skills, coaching in this context ensures specified goals are reached and gives you options to escalate steps in the process if they aren’t.

Considered the least harsh measure, coaching can be used at the first sign of relatively minor trouble. The purpose of coaching is to work through and correct an action or behavior before it becomes a larger problem. Coaching is typically handled in a face-to-face meeting. Done well, coaching can nip potential problems in the bud while conveying to the employee that his or her performance and conduct matter to you and the company. You’ll find strategies and step-by-step instructions for coaching employees in Chapter 11.

Keep track of your coaching sessions. In many companies, managers coach employees as many times as they wish, even on the same performance issue, before they decide that the employee should formally enter the company’s performance system with an official verbal warning. The problem with this practice is that it allows for inconsistent treatment among employees, with all of the possible legal problems that this can create, including claims of discrimination (see Chapter 3 for more information on the dangers of inconsistency). That’s one reason to treat coaching as a distinct step in the performance process and to document it. Although you don’t have to tell the employee that your coaching conversation constitutes a form of discipline, you should make some notes on the conversation and escalate to a verbal warning if the situation doesn’t improve. (You’ll find information on documentation in Chapter 9.)

Verbal Warning

If a problem continues despite your coaching efforts, a formal verbal warning is often the next step. Typically, a manager delivers a verbal warning in a formal meeting, where the employee is told that the behavior or action is unacceptable. The term “warning” is used to communicate that there is a real problem, one which must be resolved if the employee is to get back on track. Verbal warnings differ from coaching because they are more formal. The employee is notified that he or she is being disciplined, and the incident is usually documented in the employee’s personnel file. Verbal warnings are covered in Chapter 12.

Written Warning

You have coached your employee and given a formal verbal warning that he or she must improve, but the problem continues. Or, an employee’s behavior is serious enough to warrant an immediate, forceful response, but not so extreme as to require termination. Providing a written warning conveys that the employee’s job is at risk unless the problem is solved. Often, company polices require the manager to involve higher management or the human resources department when giving a written warning. We cover how to prepare for, give, and document a written warning in Chapter 13.

Termination

Nothing has worked. All attempts to correct the employee’s performance or behavior have failed. The employee’s unacceptable actions, despite numerous warnings, continue. Or, the employee has done something so egregious that immediate termination is appropriate (for example, stealing from the company or coworkers, or committing violence).

Termination of employment isn’t really a disciplinary measure: It represents the failure of the performance process. If performance measures don’t work despite your best efforts to help the employee improve, you know that there’s nothing more you can do. We discuss terminations in more detail in Chapter 14.

How Performance Management Works

Many companies either have a performance policy in place or follow one in practice. And it’s not hard to see why: Used properly, these policies give managers the tools they need to make fair, consistent, and legally defensible performance decisions. Because it is based on communication and collaboration, a truly effective performance policy also helps employees improve—the ultimate goal of any disciplinary system.

“That’s all well and good,” you might be thinking, “but how do I do it?” How do you decide what type of action is appropriate in any given situation? And how do you deliver the difficult message in a way that produces actual improvement?

When you confront a situation that might call for discipline, follow these steps:

1. Gather information. Before you act, make sure you know what happened, and that you’ve heard all sides of the story.
2. Assess the severity. Consider how the problem is affecting the employee, the team, and the company.
3. Decide how to respond. Choose the appropriate disciplinary measure, based on the severity and frequency of the problem and how your company has addressed similar issues in the past.
4. Prepare to talk to the employee. Plan your disciplinary meeting, including what you will say and how you will say it.
5. Meet with the employee. Talk about what has happened and collaborate with the employee to create a plan for improvement.
6. Document. Make a written record of the discipline imposed and the plan for improvement.
7. Follow up. Check back in to make sure the employee is meeting his or her commitments.

Gather Information

Other situations are trickier to untangle, especially if more than one employee is involved. If, for example, your team is not meeting its performance goals, you might not know exactly who or what caused the problem. Or, if one employee accuses another of misconduct (like harassment or threats of violence), you may need to gather more information before deciding what to do. If you can’t figure out who is responsible for a problem, you might need to investigate before you take action. (For detailed information and step-by-step instructions on how to conduct an investigation, see The Essential Guide to Workplace Investigations, by Lisa Guerin (Nolo).)

Don’t just react to problems—prevent them. The best managers know that they can’t get the most out of their teams just by stepping in when disaster strikes. Instead, they continuously manage employee performance by communicating frequently with their teams, giving regular feedback, and providing the resources necessary for success. You’ll find tips and techniques for this type of performance management in Chapter 4.

Assess the Severity

Before you decide whether or what type of response is in order, you need to know how the problem is affecting you, your employees, and your company. There are several important reasons for doing this:

• The corrective measure you impose should depend, in large part, on how serious the problem is. If the employee’s behavior is having or could have a direct and significant impact on other employees, or on the company’s ability to get out its products or serve its customers, a higher level of discipline may be in order.

• It will be easier to leave your emotions at the door and make objective, fair performance decisions if you focus on the effect of the employee’s behavior—and not on your own anger or disappointment. It’s easy to let negative feelings enter into your decisions, especially if the employee’s actions have undermined your authority or caused you to miss your own performance goals.

• Knowing how the problem is affecting the team and the company— and having a few examples ready when you meet with the employee— communicates the importance of the issue and gives the employee the proper context to understand the problem. It demonstrates that the employee is a crucial member of the team and that his or her performance plays an important role in the company’s success. And it will help both of you troubleshoot solutions, to make sure that they address both the employee’s concerns and the needs of the company.

Example:  You sit your accounts payable clerk down and say, “Your lack of attention to detail is causing us to have to double-check your work, and causing our customers to suspect the integrity of their invoices. This is costing the company money and time, and we need to figure out a way to fix it.” His first response is to ask for more information: What lack of detail? Who has had to go over the work, in which accounts? Which customers are upset?

Because you took the time to consider the impact of the clerk’s problem, you are armed with a few examples, such as, “The Jones Company has found errors in their invoices twice. This means that the sales rep, Tom, has had to spend time on the phone assuring them that we will correct the invoice and are not charging them for products they didn’t order. This embarrasses our company and hurts our reputation, and it also hurts our future business. Because Tom’s time with them is limited, this means we’re using it to correct a problem instead of giving Tom the opportunity to sell them more products. Long-term, persistent errors like this make the company look as though it doesn’t take its billing or its invoicing seriously—sending the signal that clients shouldn’t take payment of our invoices seriously, either.”

Once the clerk understands that his performance actually endangered the company’s relationship with a customer and squandered a chance for the company to make more money, he can see how important it is for him to do his job right—and will better understand why you feel the need to intervene. Now, you can begin to collaboratively find a solution.

When the measure you take is based on how an employee’s problems are affecting the company, and you focus your corrective efforts on changing that situation, you and your employee will be on the same page: Working to improve the situation, rather than arguing about what happened and whether it’s really a problem. The employee will see that you are acting fairly and will be less likely to respond negatively. You’ll find specific strategies for assessing the impact of an employee’s performance or behavior problems in Chapter 5.

Decide How to Respond

The key to effective performance management is a proportionate response: In other words, the corrective measure you choose should reflect how serious the problem is. If, for example, your employee has been late to the office one time, a written warning is probably too harsh. A simple coaching session— even a brief chat at the employee’s desk—will probably do the trick.

When trying to figure out how serious a particular problem is—and therefore, what type of corrective action to impose—there are several factors to consider:

• The effect of the behavior. Understanding how an employee’s problem affects the work of other employees, customers, and business opportunities is fundamental to deciding how to respond.

• The frequency of the behavior. When one employee misses a single deadline after years of on-time delivery, it is less worrisome than when another is routinely late with assignments. A repeat problem can mean that the employee doesn’t understand your expectations, doesn’t know how to meet them, doesn’t have the resources to meet them, or simply has entrenched behaviors—like procrastination—that must be improved.

• The frequency of the behavior. When one employee misses a single deadline after years of on-time delivery, it is less worrisome than when another is routinely late with assignments. A repeat problem can mean that the employee doesn’t understand your expectations, doesn’t know how to meet them, doesn’t have the resources to meet them, or simply has entrenched behaviors—like procrastination—that must be improved.

• The legality of the behavior. If the employee has done something illegal, such as harassed or threatened another employee, misrepresented the company’s financials to shareholders, or used company computer equipment to download pirated software, a very serious response is in order. In these situations, how the company responds could determine its liability to a third party.

Example: Steve asks Claudia out several times, but she turns him down. When Steve asks her to be his date at a company party, Claudia says, “Look, I’ve tried to be polite about this, but I just don’t want to go out with you. Please stop asking me; I’m not going to change my mind.” Steve then begins leaving romantic notes on the windshield of Claudia’s car in the company parking lot, and on her desk. Claudia tells him to stop and reports his behavior to John, the human resources manager.

John gives Steve a verbal warning and tells him to stop bothering Claudia. Steve stops leaving notes for Claudia but begins going out of his way to see her. He times his arrival and departure from the office to coincide with hers, he hangs out in the hallway outside of her office and stares at her, and he “just happens” to cross her path during her twice weekly lunchtime walks on a nearby bike path. Claudia again complains to John, who gives Steve another verbal warning.

What’s wrong with this picture? The response is disproportionate to the problem. Steve appears to be stalking Claudia and is receiving nothing more than a slap on the wrist. The company hasn’t let Steve know that his actions are inappropriate and will not be tolerated. Claudia will be able to argue that the company should be legally responsible for any harm she suffers as a result of Steve’s actions, including her emotional distress.

Prepare to Talk to the Employee

Even if you will just be engaging in simple coaching, spend time preparing your approach. Planning will give you some important breathing space, so you won’t respond emotionally. It will also help you get all your ducks in a row prior to taking action, so you can explain the problem and its effects to the employee.

The keys to good preparation are:

• Run your plan by others, if necessary. Some companies require managers to get permission—from their manager or the human resources department, for example—before imposing a verbal or written warning. Of course, you should do this if your company requires it. But there are good reasons to seek out feedback, even if you don’t have to. You can get ideas on what to say, how to say it, and what solutions might work. You can also find out how similar situations have been handled in the past—a critical factor in making sure that your disciplinary decisions can withstand legal scrutiny.

• Think about what you will say. No matter what type of action you decide to take, you’ll have to sit down with the employee and talk about it. Script your first few sentences—what are the most important points you want to make? Because the meeting should be a collaborative exchange between you and the employee, you shouldn’t write out everything you plan to say; just consider how you’ll open the conversation and make a list of key issues to cover.

• Prepare for possible responses. Will this employee take responsibility and immediately move on to solving the problem? Or will you be met with resistance? If you’re uncomfortable about emotional confrontations, plan how you will respond if the employee reacts with anger or tears. (You can find much more about preparing for an employee’s reaction in Chapter 8.)

Meet With the Employee

Now you are ready to address the issue face to face with your employee. This is where your preparation will pay off in an honest, respectful session that paves the way for improvement. In a typical meeting, you will progress through these steps:

Example: “Karen, I wanted to meet with you today to talk about your attendance. You were at least half an hour late twice last week, on Tuesday and Wednesday. On both days, Mark tried to cover your phone, but he wasn’t able to take all of your calls along with his own. This means customers had to wait longer to talk to a representative, which doesn’t reflect well on us.”

• Review previous discussions, if any. If you and the employee have already talked about this issue—whether in a disciplinary meeting or a casual conversation—briefly summarize those discussions. This will remind the employee that he or she knew about the problem and agreed to improve. It helps justify your continued attention to the problem and focus the employee on what needs to change.

Example: "You and I discussed tardiness several months ago, after you were late for the first time. As you’ll recall, I reminded you that one of your job requirements is to be at work promptly at 9:00 a.m., every morning. You agreed that you would arrive on time from then on.”

• Get the employee’s buy-in. Before you move on, try to get the employee to agree about what happened. If you’re wrong about the facts, you should find out right away, before you try to begin solving a problem you might not have. And, if the employee reacts defensively or with anger, you’ll want to make sure that you can at least agree about what happened, even if you disagree about why.

Example: Karen responds to the statement above by saying, “I don’t think I was that late. Besides, I had to drop my daughter off at her grandmother’s house those days.”

Rather than arguing, simply restate the facts and ask the employee to agree to them. “Karen, the time clock shows that you punched in at 9:40 on Tuesday and 9:45 on Wednesday. As you know, you are scheduled to start work—and that means be at your desk, ready to answer phones—at 9:00. So before we start talking about why you were late, I want to make sure you agree that you were late on those days.”

• Hear the employee out. Once you and the employee agree on the facts, the employee will probably want to offer reasons (or excuses) for his or her behavior. Listen carefully to what the employee says—you may learn things you didn’t know about the situation, or about how your employees get along or understand their work assignments. Show that you’re listening by repeating back what you hear.

Example: Karen says, “I didn’t realize I was that late; I’m sorry. I had to take my daughter to her grandmother’s house because she was sick and couldn’t go to school. It’s so far out of my way, and I got caught in traffic.”

You respond, “So you were late because you hit traffic and had to drive farther than usual, in order to take your daughter to her grandmother’s house?”

• Start working together on solutions. During this process, you’ll want to help the employee come up with ways to solve the problem and offer any resources or help you can. It’s also a good idea to get the employee’s input on how to fix the problem; this leads to higher engagement and investment on the part of the employee

Example: You move the conversation to problem solving by saying, “Karen, I think I understand why you were late last week. But we need you here on time, every day, so our customers get the service we promise them. What can you do to make sure you get here on time?”

• Decide on a plan. Sometimes, you and the employee will come up with several ideas; other times—particularly if you are dealing with misconduct—the only solution is for the employee to stop the problem behavior. Either way, once you determine the best course of action, restate it so you both understand what will happen next.

Example: Karen says, “Well, I’m hoping this won’t be an issue, but I suppose my daughter could get sick again. I guess I could leave earlier, now that I know how long it takes to get here from her grandmother’s house. Or, if I’m running late, I could ask my husband to drop her off on his way to work; after all, it’s his mother!”

You respond, “Those sound like good ideas. So next time your daughter has to go to her grandmother’s, you’ll either leave earlier so you can get here on time or have your husband take her.”

• Decide what will happen next. If you’re managing a performance problem, state what you want to see change and by when. Also plan to check in with the employee in the interim, to make sure things are moving forward as planned.

Example: In Karen’s case, very little follow up will be required, although you might want to ask her to check in with you the next time her daughter is sick, to make sure that her ideas for arriving on time worked.

You’ll find detailed information on how to hold coaching sessions and give verbal and written warnings in Chapters 11 through 13, and strategies for communicating effectively with employees in Chapter 7

Document

It is vitally important to document performance issues. Of course, you’ll want written proof that the employee was aware of the problem and was given a fair chance to improve, should the issue ever end up in court. But there are many other reasons to put your corrective discussions and actions in writing:

• It helps you make sure that you and the employee agree on what happened, what is expected, how the employee will improve, and by when.

• It creates a record for you or the employee’s future managers to use if discipline becomes necessary again.

• It can help you identify patterns on your team. For example, if several of your reports have trouble meeting deadlines, you might want to examine your own scheduling practices. Are you giving people enough time? Does your team know why these deadlines are important? Does the team have enough resources to get the job done? Do you need to create a calendaring system, send out email or Slack reminders, or come up with another way to keep everyone on track?

You’ll find detailed instructions on how to document, including a sample form you can use, in Chapter 9.

Follow Up

The ultimate goal of performance management is to fix the problem and improve the employee’s performance. The only way to do this is to adhere strictly to your agreements, stay on top of the employee’s performance going forward, check in often on the status of the action plan, and work closely with your employee to ensure a positive outcome. Managing performance is a process, not a single meeting or document. To get the most out of the process, you need to stay involved until the problem is truly resolved.

Using This Book With Your Company’s Policy

The techniques described above are universal: You can use them to assess and deal with any performance or conduct problem. If your company already has a performance policy, you can apply these strategies within your company’s rules to make the system—and your management skills—more effective.

This doesn’t mean you can ignore your company’s requirements, however. Your company’s policies dictate its relationship with its employees: They reflect how the company wants and expects you to deal with workers. Deviating from established company policies can create legal risks for the company—and obviously, can get you into trouble at work, as well.

Here are some tips to get the most out of this book while complying with your company’s rules:

• When in doubt, follow company policy. If the terms, forms, or advice we use are different from your company’s policy, follow the policy. If you have questions about what you should do or whether the policy is fair or legal, talk to your manager or human resources department.

• Pay close attention to terminology. For example, your company might have a disciplinary measure it calls an “oral reprimand,” which is in all ways identical to what we refer to as a “verbal warning.” If it’s clear that we’re all talking about the same thing, you can follow the advice we provide on verbal warnings to give an oral reprimand. If you aren’t certain, follow your company’s policy.

• Focus on strategy. Even if your company’s policy is different from our model, you can apply the planning, communication, collaboration, documentation, and follow up techniques we provide here. Your company’s policy provides the structure for corrective action (the disciplinary measures available and when they should be used); we provide strategies to make your actions most effective no matter what form of discipline your company requires.

We hope you enjoyed this sample chapter. The rest of this book is available for sale.

•    Corrective actions should be proportionate to the seriousness of the problem, considering things like the effect of the behavior, the frequency of the behavior, the employee’s disciplinary history, and the legality of the employee’s conduct.

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