I keep seeing the same employee: feels he has been mistreated by the employer, nothing the employer can say or do will change that, sends lengthy and agitated communications to multiple people, and is not specifically threatening, but the nature, frequency and tone of the communications is unusual and concerning. Of course it’s not really the same employee, but there sure is a similar profile that keeps popping up, probably aided by our technological age that lets anybody say anything without the accountability that comes with in-person communication.
Clients know I use the chess game analogy for working through many employee situations. What is the key point of thinking of it as a chess game? While we all want to plan our business affairs, in chess you can’t go into the game with all 50 moves you are going to make spelled out. Why? Because the other guy is going to make moves too.
You don’t know what the other guy’s moves will be, but in response to each move, there is an optimal move for you to make. If you calmly and methodically do so, you are very likely going to win. I have yet to see one of these types of employees who is a chessmaster. I’m sure he exists, but generally the composite employee we are describing lacks the self-awareness and reflection to play this game well for very long.
The key concept is control, in several respects. You don’t need to like sports analogies as much as I do to know that dictating the terms of engagement as much as you can helps you win. In my experience, it is particularly important when dealing with these types of employees to (calmly and politely) let them know they are not going to be in charge. There are many aspects to this:
1. Thou shalt not take the bait. He may say things that are untrue, exaggerated, misconstrued, aggravating, etc. but at no time will we lose our cool. That’s what he wants. Of course, communications that are harassing or threatening cannot be tolerated, but I’m talking about the employee who is just smart enough not to cross that line (but not as smart as he thinks). You need to stay always polite, and always open to any information and concerns he may want to bring to your attention. Never react.
2. Have a point person. This is valuable for two reasons. One, not everybody at your business will be equally equipped to handle these tough situations. Figure out who it should be and put her in charge. Two, the employee needs to know he can’t “forum shop” – whoever he communicates with, it all comes back to the point person. He does not get to try different points of contract to find the answer he wants.
3. “My lawyer” – we’d love to talk to him/her. Many employees reference things their lawyer said. My experience is that in most (again, not all) situations where the employee truly has a lawyer, we have heard from the lawyer. Employees are entitled to have lawyers, but don’t let him get away with throwing that around without testing it. Try something like this: “Maybe it would be helpful for your lawyer to talk to the company’s lawyer. If you will give me the contact information I will pass it along.” Let the employee know you are going to gently verify his statements.
4. Communicate in writing. Most of us would agree, we could use a lot more in-person communication and a lot fewer emails in the workplace. But the usual rules do not apply here. Things you say will be misinterpreted and twisted – we need to keep as much as possible in writing to protect your business going forward.
5. Be responsive – but not too responsive. Not every email requires a response in real time. Indeed, for every five-line email you send, you probably get a 50-line email in return within the hour, so where we can, let’s wait a couple of days before we trigger the next one. Certainly to position the company to defend itself in any future disputes we need to be responsive, but the employee does not get to set the pace of communications.
This may sound harsh. Note, it is a very small number of employees we need to think about in these terms, they just happen to monopolize a disproportionate amount of employment lawyers’ time. Thinking this way about the occasional employee who is sucking the life out of your business does not prevent you from being a caring, compassionate, and inclusive employer.
Also note, in some cases, underneath the bluster the employee may have a legitimate concern. After all, if you are like all of my clients, you employ human beings, and we are not perfect. The employee has the right to express concerns about the workplace, including to other employees. (Some employers do not realize, even if you do not have a union, the federal National Labor Relations Act allows employees to talk about their working conditions, including their compensation.) Any concerns raised by the employee should be handled just as they would be with concerns raised by any other employee.
Easy? Not at all. These situations can have many moving parts and, despite my point above about having a point person (likely somebody with an HR function), can put a front-line supervisor in a difficult position she is not trained for. There is a lot to balance and a lot of judgment calls. But if we start from the assumption that the employer is going to set the terms and calmly work through the chess game, we are better positioned to win that game than the difficult employee.
This article should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.
Barnes & Thornburg LLP is a large, full-service law firm that seeks to take a more entrepreneurial and cost-effective approach both to client service and its own business.
