Virtually all employers know that workplace communications can be a minefield. It’s always vital to maintain clear channels of communication and shared understanding between personnel at all levels of an organization. At best, failure to do so stands to impact efficiency and morale; at worst, it can result in costly legal ramifications, damage to a company’s brand, and disruption of operations.
This is especially true when it comes to communications surrounding employee performance and disciplinary measures. Federal and State laws both provide multiple levels of protection for employees claiming unfair discipline or dismissal, particularly if on grounds of discrimination. In the event that a dispute results in litigation, it can safely be assumed that the employer will face a significant burden of proof in demonstrating that it has treated the complainant fairly and equitably – and that’s the point at which earlier communications can potentially torpedo an effective defense.
A recent discrimination lawsuit filed by an employee discharged for performance reasons provides an excellent case in point. As reported in HR Morning, three vaguely phrased words uttered by the company’s CEO in the course of a meeting with the disgruntled employee were sufficient to allow the suit to advance, necessitating a costly and prolonged legal defense. In addition to documented performance problems and issues surrounding execution of job duties, the CEO cited “too much drama” surrounding the employee as part of the grounds for dismissal.
So what’s the problem? Subjectivity. “Too much drama” may seem like a statement of fact in the context of a discussion between people equally familiar with the circumstances being described. To a plaintiff’s lawyer, though, it is clearly an opinion – and would likely appear the same to a regulatory board member or a judge. In all likelihood, the CEO simply used the phrase as shorthand to describe a number of related events that both the company and the employee were well aware of; to an outside observer, though, the phrase smacks of the sort of vague, subjective complaint likely to be arbitrarily or unequally applied to employees targeted for discipline or dismissal – and thus an invitation to a potential lawsuit.
In the heat of a conflict situation, it is only human for managers and employees alike to fall prey to sloppy phrasings such as this. “Only human” impulses, though, are what companies need to guard against. The solution is to be factual, specific, and precise in all communications related to an employee’s performance, or lack thereof. Had this CEO chosen to enumerate the instances of the “drama” he was referring to – “Employee X was involved in conflicts with other employees Y times within a Z-month period” – it is doubtful that the discharged employee would have had grounds to proceed with a suit.
A solid defense against a discrimination, harassment or wrongful dismissal challenge hinges upon an employer’s ability to demonstrate that the decision to discipline or terminate an employee was based on objective, fact-based decisions. However fair the evaluation or disciplinary process may have been, imprecise or subjective language only serves to undercut an employer’s position – and open up a world of unnecessary, avoidable pain for the company.