Addressing an employee’s failure to meet performance expectations can be challenging for an employer. This article highlights best practices for handling and documenting a non-performing employee.

As a threshold matter, it is important to note that there are initial steps an employer can take to minimize the potential for employee underperformance and to protect its legal interests. Specifically, upon hire, employers should provide each employee with a written job description outlining job duties and responsibilities. Using the job description as the starting point, employers should then clearly communicate to employees in writing the performance standards required for success in their position with the organization. At a minimum, it is recommended that an employer communicate these performance standards and expectations in writing upon hire and annually thereafter through a formal performance evaluation process.

Following the written communication of performance expectations, employers should regularly provide to employees objective and accurate evaluations of the employees’ performance against such expectations. In addition to an annual written performance evaluation, employers should provide constructive performance feedback to employees periodically and memorialize such feedback in less formal documentation, such as a memorandum or an email to the employee.

If an employee is not meeting established performance expectations, the employer should address the performance failures immediately. Rather than waiting until the next formal evaluation cycle, employers should promptly identify the performance deficiencies and communicate them to the employee in writing. The written communication not only should include generalized statements of deficiency, but should also include clear examples of the identified deficiencies and, if applicable, the negative impact the deficiency has had on the organization. For example, rather than stating only that the employee is not working efficiently, the communication also can include specific examples of the project deadlines missed as a result of the employee’s inefficiency. Additionally, the communication should provide suggestions as to how the employee can improve their performance and an offer of support from management. Management can support an employee’s efforts to improve their performance by, for example, scheduling and documenting regular “check-in” meetings with the employee. These meetings allow the employer the opportunity to provide feedback on the employee’s efforts to improve and identify any continuing deficiencies.

If, after taking these steps, an employee does not improve their performance, an employer may choose to implement a more formal written performance improvement plan, that includes clear identification of performance failures, reasonable performance goals, and a reasonable timeline for improvement (e.g., 60 days, 90 days, etc.). In the event that the employee has engaged in conduct that is egregious in nature, an employer may choose to take disciplinary action, such as a written warning or suspension.

Managers should be trained on and held accountable for providing written, accurate, and timely performance feedback to and setting performance expectations for their subordinates. The employer’s human resources function should be kept apprised of all employee performance deficiencies and be provided with copies of all supporting documentation. This will allow human resources the opportunity to not only provide guidance to the managers in addressing performance issues, but also ensure that the organization’s policies are being followed and consistently administered.

Maintaining accurate documentation of clearly communicated performance standards, ensuring all employer policies are being followed (including those on progressive discipline), and treating all similarly situated employees consistently are key to protecting an employer’s legal interests.

Source: Venable LLP – Jennifer G. Prozinski and Jeffrey A. Brand

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