Careful planning is necessary before you give an employee an appraisal or in advance of terminating the person.

With under-performing employees, these are critical conversations. They can be a challenge.

Certainly, you want to get the right results. Saying things the wrong way can escalate into a lawsuit.

In difficult conversations with employees, here’s how to manage the risks:

1. Don’t procrastinate

If you have a poor-performing employee, deal with the situation as quickly as you can.

Keep in mind the employee probably anticipates that a discussion is forthcoming.

Certainly, you want to solve problems right away.

With an employee who has a poor attitude, you also might be dealing with a person who is intent on a pre-emptive strike against your company.

Avoid the appearance of being retaliatory. So prepare:  Document the need for the discussion, and why and when it’s scheduled.

2. Prepare documentation

Spend adequate time preparing documentation. There are two documents you’ll need: 1. Your talking points for you to use. 2. Paperwork to give your employee.

Initially, give the employee the paperwork – whether it’s an appraisal or memo. Give the person time to read it.

3. Include illustrations

Don’t generalize. Provide specific examples about the employee’s behavior or performance. If you’re minimizing the number of examples for now, say so.

There two reasons for providing specific examples.

You don’t want to unknowingly give ammunition to the employee for a lawsuit. On the positive side, however, you might be opening the door for the employee to improve.

4. Don’t discuss the person’s intent

Stay calm and don’t speculate. Don’t get into the person’s possible intentions or motives. That’s irrelevant and too difficult to prove, and it only gives the employee more ammunition against you.

Certainly, you want to be helpful to the person, but again don’t get into intent or motive.

To be supportive, you can say something like, “We want you to be successful.”

Don’t ask why the person is underperforming – whether it might be a physical or emotional problem – or the person’s work-life management issue.

If you do, more than likely you’ll be opening the door to an ADA disability claim.

Focus on results.

If the employee mentions a condition, disability or a religious belief, get ready for a longer discussion.

5. Don’t make any excuses

Be careful and don’t make any excuses or admissions. Certainly if the company is at-fault, the employee should not be reproached.

But don’t try to soften the blow of a criticism by saying something such as, “It’s the company’s fault as much as yours.”

Management shouldn’t take responsibility unless it’s appropriate.

6. Be careful about your verbiage

Avoid the appearance of bias. Take every precaution to be objective. That means being careful not to use words that might lead to a discrimination complaint against you.

Focus on principles, not personalities. Don’t label the person.

If you label the employee as “rigid,” you’ll be giving the person an opportunity to disingenuously claim that you’re either discriminatory on either age or on gender discrimination, or both.

7. Don’t speak with certain forms of finality

Eliminate any opportunity for the person to accuse you of making exaggerations or being untruthful. Avoid saying “always” and “never.”

Trust me, the person will come up with exceptions and will be able to point out you’re making inaccurate statements. That will spell legal trouble for you.

8. Prepare to listen

Allow the person to respond. Your employee might make valid comments.

With good fortune, the person will offer reasons for the behavior or performance. This might open the door for improvement.

Take good chronological notes as the person talks. Be very cognizant of what is said and what isn’t.

For instance, if the person doesn’t talk but later claims it was discussed in the meeting that you did something unprofessional, your notes will be instrumental in denying any legal liability.

9. Don’t engage in small talk

Don’t casually converse with the person. Be respectful, but start by mentioning it will be a difficult discussion. Then get to the points you want to cover.

Be very careful. Don’t ask about the person’s health or family.

You might be trying to do the right thing, but if you show what you intend to be empathy you’ll find yourself headed for a claim under the Americans with Disabilities Act, or ADA.

10. Outline your expectations

In addition to specifying your concerns about the person’s performance, carefully explain what you expect for the future.

This includes your objective. Hopefully, you’ll save the employee and get a strong improvement.

If not, you’ll have a documented record of the discussion.

Good luck. Do these things and you’ll minimize any legal danger.

From the Coach’s Corner, here are related sources of information:

How to avoid EEOC Discrimination Suits — Here are six tips for micro-companies and 13 strategies for larger organizations to avoid EEOC migraines.

Avoid EEOC Legal Hassles over Unpaid Leave Requirements — You might want to review your current human resource policies. The Equal Employment Opportunity Commission (EEOC) has continued to push employers on unpaid leave under the Americans with Disabilities Act (ADA).

Legal HR Issues? Best Practices in Workplace Investigations — As an employer, one of your biggest nightmares can be issues involving your employees. There can be many reasons to conduct an investigation. “Action expresses priorities,” said Mohandas Gandhi. So you should act quickly.

Workplace Bullying – Tips for Victims and Bosses — Workplace issues include bullying. It’s a widespread problem for employers and employees, alike.
Here are valuable tips for both employers and workplace victims.

Management: 5 Most Common Reasons to Fire Employees — With difficult employees, you have two obvious problems – the impacts on your organization and the behavior of the individual. Here’s what to do.

“Success in management requires learning as fast as the world is changing.”

-Warren Bennis


Author Terry Corbell has written innumerable online business-enhancement articles, and is a business-performance consultant and profit professional. Click here to see his management services. For a complimentary chat about your business situation or to schedule him as a speaker, consultant or author, please contact Terry.