CLE credit seminar given by Woodrow K. Glass. Attorney out of Norman, OK.

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DEALING WITH THE TROUBLED/TROUBLING EMPLOYEE
I recently heard about a young boy sitting in front of a country store drinking a soda. It
was a hot summer day and the young boy liked to great the farmers as they would walk up
the steps, out of the heat of the day and into the store. One day a farmer stopped to visit
with the young boy and said – “That sure is a good looking dog with you. Does your dog
bite?” The young boy responded with a confident “NO.” The farmer reached down to pet
the dog only to be bitten several times before he could break free from the strong jaws of
the vicious attack. The farmer looked angrily at the boy and sternly stated – “I thought you
said your dog did not bite.” Without hesitation, the young boy looked up and without any
hesitation proclaimed – “That’s not MY dog!!”
I am certain we have all faced those situations where an employee, co-worker, colleague
or supervisor have proclaimed – “That’s not my job.” In those instances, our reactions to
situation will most likely set the tone for either a meaningful resolution or a separation
from employment. In the next few pages, I will discuss the topics of “Dealing with the
Troubled/Troubling Employee.”
A. Evaluating Employee Performance
Evaluating employee performance encompasses more than completing the annual
performance evaluation. Typically, the company’s written policy has a time allocated to
conduct the performance of its employees. The evaluation process is usually “form” driven
and both the supervisor and employee check the boxes, sign the evaluation form and wait
until the next mandated evaluation.

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A meaningful evaluation process requires preparation and a desire to have a true exchange
of ideas and feedback on ways to improve one’s workplace performance. A meaningful
and truthful employee evaluation also includes observations outside the written job
description. Each employee has a set of written of job performance goals and expectations.
Statistics or data proves if the employee is meeting those productivity goals. As they say,
“figures don’t lie but liars do figure.”
There is more to a successful company and happy employees than meeting the written
performance objectives. Employees are not emotionless robots in the workplace. Is the
employee willing to help out a colleague? Does the employee interact well with everyone?
Does the employee treat customers with respect? All of these characteristics can be
summarized with – Does the employee have a positive mental outlook and attitude? Do
they see the cup half empty or half full?
A key component to an informative performance evaluation, particularly in those instances
where the employee is angry or involved in a tense situation, is the ability to listen. Avoid
the temptation to rush to judgment and pick a side. In many instances, there is no right or
wrong. Instead, each employee may have a different perspective on the situation. Rather
than becoming irritated at the situation, use the opportunity to improve productivity and a
chance to improve it by better understanding the problems troubling the employee. The
ability to listen and become a sounding board for the employee will strengthen the
employee/employer relationship and build a sense of trust with the employee because they
recognize their voice is being heard.

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We all have a tendency to recognize only the negative aspects of an employee’s
performance. We all have those employees that can point out the problems in the
workplace. The best employees are those who not only recognize the problem but present
us with solution from their perspective on how to deal with it.
Regardless, a successful evaluation is one in which the employee recognizes clear
feedback. Say what you mean and mean what you say. Although this approach may be
uncomfortable, if presented in a positive and professional manner, the employee will have
no questions about the performance related issues as they move forward.
B. Employee Discipline Plan and Proper Documentation
Most employee handbooks contain a written progressive discipline plan of improvement.
Make attempts to follow it. The performance plan has likely been approved by upper
management or their legal team and has been proven over the courseof time tobe effective.
The most important aspect of a discipline plan is writing down the key performance related
issues. We have all been in those situations where we have neglected to document and
encounter with an employee. Avoid the temptation to “do it later.” Instead, document it
as it happens. The most difficult situations arise when there is not proper documentation
of an employee’s performance to justify a separation from employment.
On those occasionswhere you are faced with the difficult task of taking disciplinary actions
against an employee, be sure the discipline is consistent with each employee. To maintain
respect throughout all levels of the company, each employee must be treated the same.
Treat each employee fair – if the consequences for 2 untimely written reports is a verbal
reprimand, impose the same discipline to everyone.

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Employees need to know the consequences of their actions too. Too often, an employee
will say – “I did not know that I would receive a written reprimand. We talked about it last
week and I thought I was doing better.” This scenario can be avoided if the consequences
of one’s performance fails to improve by clearly communicating those consequences.
C. Legal v. Illegal Reasons for Termination
From the perspective of an employee, all terminations are illegal. From the perspective of
an employer, all terminations are legal.
Every terminated employee that contacts my office will state, “I have a wrongful
termination case.” I listen carefully to their explanations and in every instance, I agree –
you have been wrongfully terminated. However, I must go on to explain the difference
between a wrongful termination and an unlawful termination.
Oklahoma is an “at-will” employment law state. Simply put – an employer can terminate
an employee for any reason at all; except of course, in a few limited circumstances. Those
limited circumstances, however form the basis for most legal actions by employees.
Generally, an employer cannot terminate one’s employment because of race, religion,
gender, age or a disability. What often goes unnoticed, especially by the employee, is that
the employee can quit at any time without notice to their employer.
In each of the generally recognized exceptions, the employee must first fit within the
“protected class” designed by the statutory remedy. The employee must set forth a prima
facia case and meet the essential elements of the case. Once the employee establishes the
essential elements of the case, the burden of proof shifts to the employer to state a
legitimate non-discriminatory reason for the employment related decision. Typically, this

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is an easy burden to meet which switches the burden of proof back to the employee. The
employee must show that the employer’s proffered reason is a pretext, sham or unworthy
of belief.
D. Retaliation Claims and Employee Discipline
Most frequently, retaliation claims arise after an employee complains of perceived
discrimination in the workplace or formally submits a charge of discrimination with an
appropriate government agency. If an employee complains and the employer has
knowledge of the complaint, it should be acknowledged and an action plan implemented
to address the concern.
Careful consideration should be given to avoid the appearances of retaliating against the
employee making the complaint. Legally, retaliation claims are not as difficult to prove
from an evidentiary perspective. Generally, the employee must only show they complained
about a discriminator practice or action and suffered an adverse employment action after
complaining. The key legal analysis relates to the temporal proximity of the complaint and
the adverse employment action.
As mentioned above, written and previously documented interaction with an employee’s
conduct is the best evidence to defeat a retaliationclaim. On the other hand, if the employer
terminates an employee the day following a complaint and has failed to document prior
work related deficiency, there is an inference of retaliation.
E. Negotiating Severance Packages and Separation Pay
An employee and employer may negotiate a severance or separation package instead of
termination. Severance packages most often arise in those instances where a company

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implements a reduction in force. Most companies have a written policy that outlines the
procedures for the reduction and those employees affected. Generally, the last hired is the
first out in the reduction process. There are generally recognized exceptions to this idea
and depend on numerous variables.
Severance and separation pay formulas are most typically based on the length of one’s
employment. Fairness and a recognition of the length of one’s service to the company
typically serves as a model. Most often one is offered a month’s pay for every year of
service.
There are important time and review considerations when asking employees to negotiate
severance or separation agreements. An employee should be given the requisite time to
revoke or reconsider the agreement after it is signed by the parties. In addition, a severance
agreement should clearly articulate the claims the employee is releasing in exchange for
the payment of agreed severance pay. A formalized agreement should be signed and
retained by the parties.
F. Compliance Exit Interviews: Documents and Disclaimers
Exit interviews are frequently used as a tool for the employer to better understand the
circumstances of an employee’s separation. An employer can learn information from the
employee on how to improve the overall effectiveness of the employee/employer
relationship. It also allows the employer to gather and retain all the sensitive and/or
proprietary information in the employee’s possession prior to leaving the premises.

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Maryann Palmeter recently wrote an article for the AACP in which she identified some
compliance related questions for consideration.1 The following is a sampling of the
suggested questions:
 Do you know of any ethical or compliance issues that should be addressed?
 When you were trained, did you receive an adequate orientation regarding
the company’s compliance policies?
 Are you aware of exactly how to submit a report about compliance concerns,
anonymously if you choose?
 What was the most effective means of communication used to reach you
regarding the company’s compliance policies?
 How could the company strengthen its message regarding ethic and
compliance?
 Do you feel department management supported compliance initiatives?
 Do you feel executive leadership supported ethics and compliance initiatives
throughout the organization?
No one enjoys dealing with the troubled or troubling employee. Despite the lack of joy
associated with these issues, effective and clear communication is the key to a positive and
successful outcome for everyone.
1 13 Questions to Ask During a Compliance Exit Interview – Maryann Palmeter – AACP
– May 13, 2016