I’ve Found the Problem: Now What Do I Do?

Virtually every employer ultimately will have a “problem” employee. There are many different types of “problems” that a employee may present.  An employee may engage in misconduct, whether work-related or off-duty.  Another employee may be a good citizen but unsatisfactory performer.  Other types of problems do not involve the employee’s choices or actions.  For example, a valued employee can develop a medical condition that results in frequent absences from work or otherwise affects the employee’s ability the job.

For employers, the types of “problems” that employees may present are varied and seemingly unlimited.  And Pennsylvania’s status as an “at-will” employment state does not give employers the unfettered freedom to address such problems however they deem fit.  Federal, state, and local law combine to create many layers of protections for employees and restrictions on employers.  Even the most well-intentioned employers can make mistakes that result in significant legal liability if they do not know and understand the legal requirements placed upon them. 

Addressing problem employees requires a basic understanding of the employment laws and the best practices to follow when creating an action plan that both complies with the law and achieves the organization’s operational needs.  The best times to deal with a problem employee often are before any problems arise.  Specifically, the easiest and most cost-effective way to deal with a problem employee can be to avoid hiring one in the first place through the use of a thorough and legally compliant hiring process. See Brezenski v. World Truck Transfer, Inc., 755 A.2d 36 (Pa. Super. 2000) regarding negligent hiring.

In addition, employers are best positioned to address problem employees when they have up-to-date and legally compliant employment policies and job descriptions that communicate in advance the employer’s expectations. Supervisors and managers should conduct performance reviews and provide performance-related feedback to their employees, whether it is an acknowledgement for good work on a project or to identify areas for improvement.  Here is a sample performance evaluation.

Wise employers and their legal counsel also know when to seek assistance from employment law practitioners, to avoid turning a mere problem into a catastrophe because of an inadvertent legal misstep.

PBI has developed a basic-level program, Dealing with the Problem Employee, to help employers and attorneys identify, understand, and address legal issues as they arise in the employment context.  The program is scheduled in Pittsburgh (September 24, 2015), Mechanicsburg (September 25, 2015) and Philadelphia (September 29, 2015).

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