Effective Communication and Performance
Feedback
Wendy L. Tucker, Esq.
Procopio, Cory, Hargreaves and Savitch LLP
525 B Street, Suite 2200
San Diego, CA 92101
(619) 238-1900
www.procopio.com
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
March 17, 2015
Effective Communication
and Goodwill
Help Prevent Litigation
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
Fundamental Principles of Effective
Communication:
• Setting forth clear expectations of your staff
• Direct, non-confrontational communications
• Consistent treatment
• Mentoring
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
Setting Forth Clear Expectations of Your
Staff:
• Most managers believe their staff knows what
their manager expects of them
• Most staff are clueless
• Be clear
• Documentation Helps
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
Setting Forth Clear Expectations of Your
Staff:
• How to determine what you need from your staff
– Look at key duties of position
– Consider the traits you need most
– Consider the types of conduct or performance
that will be unacceptable
– Discuss these issues in the interview if
possible
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
Direct, Non-Confrontational
Communications:
• Self-explanatory
– But harder than it looks
• People only hear what they want to hear
• Many managers avoid providing clear feedback
about problems
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
Direct, Non-Confrontational
Communications:
•
Avoid:
– Being direct but confrontational
– Addressing problems in front of others
– Being nice but not direct
• Remember Staff are not mind readers
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
Consistent Treatment:
• People get most upset over perceptions that
they are being treated unfairly
• Inconsistent treatment is the biggest cause of
employee dissatisfaction
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
Consistent Treatment:
• Two types of problems
• Relative unfairness
• Overall unfairness
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
Consistent Treatment:
• Relative unfairness
– Being treated worse than another employee
•
•
•
•
Advancement opportunity
Compensation
Performance review
Discipline
• Favoritism
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
Consistent Treatment:
• Overall unfairness
– Inconsistent treatment of same person
• Failing to consider the subordinates’ point
of view
• Causes uncertainty and fear
• Can lead to stress leaves
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
Mentoring:
• Hard for some to do
– Insecurity/fear of competition
– No time
– No financial reward
• Benefits
– Loyalty
– Job satisfaction
– Reflect upon you
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
Performance Issues
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Performance Reviews:
• Very Important!!
• Provide feedback
• Forces managers to focus on performance over
a period of time
• Helps build an accurate file
• Protects you and the School in case of lawsuit
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
Performance Feedback:
• On-going process between employee and
manager where information is exchanged
concerning the performance expected and the
performance exhibited
• Constructive feedback can praise good
performance or correct poor performance and
should always be tied to the performance
standards
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
Performance Feedback:
• Comprehensive
• Objective
• No charity
• Timely
• Accurate
• Candid
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
Performance Issues:
• Important to provide feedback throughout the
year, not just during performance reviews
• Address performance with counseling, not
discipline
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
Identify the Problem and Take Appropriate
Action :
• If you are facing a performance discrepancy (a
gap between your expectations and actual
performance), ensure that employees have:
•
•
•
•
The performance standards
The training
The direction, and
The feedback to do the job before moving to
corrective action
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
Verbal Counseling:
• Important to identify problems and address them
when they occur
• Consider placing memo regarding verbal
counseling in file
– personnel file v. personal file
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
Written Counseling:
• If performance issues continue or there is a
serious performance issue, provide written
counseling
• Make sure to document prior oral counseling in
the written counseling
• Set forth the specific problem, the required
changes and the ramifications of further
problems of this nature
• Avoid “kitchen sink” approach unless
documenting for termination
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
Performance Improvement Plan:
• A corrective action tool to deal with severe or
chronic performance issues that have not been
resolved
• Can play an integral role in correcting
performance discrepancies
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
Define Duties:
• Define the duties or behaviors where
improvement is required
– What are the aspects of performance required to
successfully perform these duties? Which skills
need improvement?
– What changes need to be made in application of
skills an employee has already demonstrated?
– What behaviors need to be modified?
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
Identify Standards:
• Identify the standards upon which performance
will be measured for each of the duties identified
– Are they reasonable?
– Are they attainable?
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
Establish Goals:
• Establish short range and long range goals and
timetables for accomplishing change in
performance/behavior with employee
– Are they reasonable?
– Are they obtainable?
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
Develop An Action Plan
• What will the manager do to help the employee
accomplish the goals within the desired time
frame?
• What will the employee do to facilitate
improvement of the product or process:
– Are the items reasonable?
– Can the items be accomplished?
– Are the items flexible?
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
Periodic Reviews:
• Establish periodic review dates
– Are the employee and the manager both
aware of what will be reviewed at each of
these meetings?
– Measure actual performance against the
standards to determine if expectations were
not met
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
Discipline and Termination
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
Employer’s Response To Misconduct:
• Follow the School’s policy
• Conduct a prompt, thorough and impartial
investigation, if appropriate
• Take immediate and appropriate corrective
action
• Informing the alleged victim of the results of the
investigation, if appropriate
• Caution against retaliation
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
Discipline and Documentation:
• Documentation
• Be specific
• Consistency
• Be direct
• Be honest
• Be fair
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
Drafting a Written Reprimand/Warning:
• Describe the problem behavior
– Be direct
– Be specific
– Be honest
• Describe the desired improvement, if any
• Set a realistic timetable to improve, if desired
• Describe the consequences of further violations
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
SUSPENSIONS
• UNPAID
• SUFFICIENT GROUNDS
• KEEP PRIVATE
• PUNISHES EMPLOYER
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
Making a Termination Decision:
At-Will Employment
versus
For Cause/Permanent Employment
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
Making a Termination Decision for At-Will:
• Is the decision “fair”?
– What will a jury think?
• Is there a hidden agenda?
• Have there been any recent complaints of
harassment, discrimination?
• Have there been any recent medical problems or
leaves?
• Check with HR
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
Informing the Employee of the Termination:
• Do it privately and in person
• Keep it short and direct
• This is not the time for a debate or
extended discussion
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
Informing the Employee of the
Termination:
• Consider having a witness present
• Do not apologize
• Be firm, but polite and respectful
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
Consider Use of Separation Agreement:
• Manage Risk
• Able to Determine Likelihood of Claim
• Must be valid Separation Agreement
– Must include Section 1542 Waiver
– Do not use short form
– Additional provisions for employees age 40 and
above
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
Why Do People Sue?
• Unfairness
• Most people sue when they truly feel they have
been treated unfairly
• Need to protect their self-image or reputation
© 2015 Procopio, Cory, Hargreaves & Savitch LLP
Wendy L. Tucker, Esq.
Procopio, Cory, Hargreaves & Savitch, LLP
525 B Street
Suite 2200
San Diego, CA 92101
(619) 525-3845
[email protected]
© 2015 Procopio, Cory, Hargreaves & Savitch LLP