• Laura Fleming

Performance Management

Question: We have an employee who is struggling in his job position. How can we help him succeed (or protect ourselves if he does not succeed)?


Response: If an employee is struggling, address the issue right away. Don’t procrastinate! Things are unlikely to get better on their own. When managers put off hard conversations, not only does the work suffer, but morale suffers also. Your higher-performing employees may become resentful over a perceived double standard.


Critiquing your employee’s performance may feel awkward, or even harsh. Keep it professional and honest. Giving feedback is one of the kindest things you can do for your employees. Best case scenario, your employee takes the conversation to heart and grows more successful. Worst case scenario, your employee knows to start looking for another job. If and when the time comes for termination, you don’t want the employee to be surprised or say, “but I’ve done it that way for the past year!”


Your employee may improve just through informal coaching. If so, make sure to recognize and encourage that improvement.


But what if the employee does not improve?


Most employment is at-will, meaning that the employer can terminate at any time for any reason, as long as the reason is not discriminatory. But it generally makes sense for the employer not to fire an employee abruptly, but to engage in progressive discipline first. This has two purposes. First, it is possible the employee can still turn things around. That is the best-case scenario, which saves you the expense and frustration of re-hiring and re-training someone else. But if the employee does not improve, progressive discipline provides clear, documented support for termination. This documentation can be helpful in the event the employee comes back and claims the termination was discriminatory.


Progressive discipline generally has three steps: verbal warning (which is still documented, despite the name); written warning; and final warning, sometimes including a short suspension. These three steps are not mandatory – again, most employment is at-will and can be ended at any time. Nonetheless, progressive discipline can be helpful for clarifying when the employee is unlikely to improve further. Each disciplinary notice should be dated, with a concise statement of the performance issue, and a place for the employee to sign. After signature, the notices should be placed in the employee’s personnel file.


Some employers will give multiple written warnings, chance after chance after chance. This defeats the purpose, and the warnings lose their power. Once you have gone through the three steps of progressive discipline, it is time to terminate the employee. Although painful, termination prompts the employee to look for another position that might be a better fit. Termination also allows you, the employer, to find the candidate that is right for the job.

Note that the above discussion concerns employees with poor performance; employees who engage in misconduct are in a different category. Immediate termination, without progressive discipline, may be appropriate for employees who engage in misconduct or violate company policy.


May you face hard discussions with courage and kindness,


Laura, the Labor Lawyer


Please note that this post does not constitute legal advice on your specific situation, and you do not have an attorney-client relationship with Laura.  If you have questions for Laura, please send to laura@redballoon.work.  Such questions may be used for general edification in this column.  

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