The Ice Beneath the Waves

Workplace claims have a lot in common with icebergs. Once an employee sues, the cost becomes visible—legal fees, litigation expenses, settlement payments, etc. Yet as with their icy cousins, you may be glimpsing only the tip, the 1/9 of the iceberg visible from the surface.

What about the other 8/9, the cost you incurred before the employee sued? What did it cost you to employ this employee as long as you did?

“I want him fired yesterday!”

If you’re in human resources (HR), I bet you’ve had an experience like this:

Manager to HR: “I want this employee fired immediately!”

HR: “Oh really. It’s the first I’ve heard of the problem. Is it new?”

Manager: “Uh, not exactly.”

HR: “How long have you been having a problem with this employee?”

Manager: “Well, uh … I guess, maybe … more or less …uh… 24 years.”

When I share this vignette at HR conferences, the room becomes a sea of nodding heads. Why is this experience so common? Avoidance. Instead of squarely confronting the problem, the manager takes what seems to be the easier way out, employing rationalizations such as:

  • “Maybe it’s a one-time thing and the problem will go away on its own.”
  • “She’s got a temper. I don’t want to get into an argument.”
  • “He’s got health issues—I’ll wait until he’s feeling better.”
  • “I’ll save it for the annual performance review.”
  • “I’m afraid if I criticize her, she’ll claim discrimination.”

As the manager avoids, costs mount. The employee’s behavior pattern becomes cemented—if or when finally confronted, defensiveness from the employee is guaranteed. Meanwhile, the organization’s cost grows—lost opportunities, problems unsolved, waste, inefficiency, frustration, stress, alienated customers and co-workers. The list goes on.

Consider the salesman who, according to management, compensated for his “low productivity” with his “high maintenance.” Finally, after 12 years of accumulated aggravation, the company let him go—only to get an age discrimination claim in return.

The iceberg now having surfaced, the company could quantify cost. But what about the previous 12 years of his employment? What did that cost? Consider that in her first year working his territory, the plaintiff’s replacement brought in 200K more than in any of his 12 years. Ouch! That’s a lot of ice under those waves!

The Moral of the Story—Don’t Ignore Your Icebergs

How about your waters—Is any ice forming? If so, here are some questions to ask:

  • What are we doing to recruit, hire, and retain employees who are a good fit for us?
  • How does our onboarding process maximize employee opportunity for success while detecting early trouble signs?
  • When employee problems arise, are they left to fester or are they addressed promptly and constructively?
  • What training, coaching, and ongoing support do our supervisors, managers, and executives receive to make them effective communicators and leaders?
  • What’s the level of accountability and engagement in our organization, and do our leaders model the behaviors the organization needs and expects?
  • If we think an employee needs to go, are we approaching the issue correctly? (For suggestions, click here to read When Workplace Relationships End).

As you can see, these questions don’t specifically focus on avoiding workplace legal claims. Instead, they try to spot icebergs forming and, in this 101st year of the Titanic’s sinking, help steer the employer to an iceberg-free zone.

Stay tuned for Part Two of this three-part series, Why Avoidance?


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

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