Please Help!

lhill

We have a female employee who is being tracked for termination. By this, I mean her job performance has been such that we will have to replace her. Her job in jeopardy warning will be given late today or tomorrow. The problem is: She has recently displayed unusual behavior when she is verbally warned by her supervisor. He will ask her a question, such as "Do you understand the instructions that were given to you during your training yesterday?" She will roll her eyes, stare at the ceiling, stare at the wall and not answer. He timed her once at 3 minutes of staring at the wall with no response. What tips do you have for dealing with someone who is acting spaced out. I say "acting" because she is a very intelligent young woman and I don't trust her motives. She has manipulated many people many ways, and I think this is one more case. (She also was involved in a locally high-profile murder case as the mistress of a man who murdered his wife before she came to us. She managed to not only get out of testifying, but also disappeared when subpoenaed.) Please give me some insight! Thanks very much.

dchr9203

That sort of behavior could be construed as insubordination and our company's policy includes insubordination grounds for termination without notice or warning. Otherwise, deal with it as you would a spoiled child. State your position, if she rolls eyes or gives silent treatment, say "I will assume that rolling your eyes is an affirmative that you understand these actions" or "I will assume that your silence is an affirmative of your understanding of these actions". Then document it. I would also tell her what you expect in performance and behavior (including overcoming her childish behavior and responding as a professional when spoken to), that it's expected immediately and ongoing and that this is her final warning. Any further infractions will result in immediate termination of employment.

Don D

Here's what I would do following an eye-roll or if she ignored my question:

"Mary, I just asked you if you understood yesterday's instructions".

"Mary, do you understand that I have asked you a question?"

"If you do not understand my question, tell me so; If you do not answer my question, your employment is terminated effective immediately."

Depending on whether or not she does actually become engaged in the conversation, I would also tell her that "We must communicate with our employees and they must openly communicate with us. If we cannot do that, you will not remain employed."

I don't see any relevance between her refusal to be engaged in conversation and her role in the murder mystery.

lhill

No relevance to her involvement in the mm. I just wanted you to get a little bit of background on her personality. Your advice is great. So far, her supv. has just treated the situation with kid gloves.

marc

Your post does not indicate how long she has been with you or if the behavior change is a harbinger of some medical issue. I ask because a training I attended illustrated an FML related responsibility of an employer when I long-term, otherwise star performer suddenly began showing poor performance, attendance, etc. The company proceeded through it's progressive disciplinary process and eventually terminated this EE. Later, a medical issue arose and through lawsuits and appeals, the EE showed the ER knew or should have known a medical issue was going on that would have provided FML protection to the EE and theoretically avoided termination.

I like Don's direct approach, which forces acknowledgement of the question(s), the process, and the consequences. It's a good approach if there is not some issue such as the one described above.

pork1

I also concur with Don's approach and your point on FMLA considerations is also important. There well maybe a medical issue that must be addressed before termination. PORK

Don D

Although I agree that the employer does have an obligation to consider offering or at least discussing FMLA IF THERE IS SOME DEFINITIVE REVELATION THAT MIGHT LEAD TO A CONCLUSION OF A MEDICAL CONDITION. But, the employer is not under any obligation to make that leap simply because there is a behavioral change. Whoever said that in the seminar is one of those 'quick to jump, run-rabbit-run, attorneys who is way too anxious to provide safety nets when none is indicated.

Shadowfax

Geez Marc, I don't doubt that that happened somewhere, but it is so cock-a-mamie it must be from Ca. There is nothing in the FMLA which requires us to be clairvoyant, or even minimally medically knowldgeable to make diagnosis, or pre diagnoses, or whatever that might be called. There is an old saying that 'bad facts make bad law', surely this must come under that heading - I hope this comes under that heading -let's pray this comes under that heading.

marc

This was an actual case and since the training was in Nevada and we are in the California Federal Judicial District, it is quite likely it was a California case. The training was 2 years ago at this point and I don't remember the case name for reference purposes. It was rather chilling - a manufacturing company if I remember right - the EE was a 20 plus year EE with a great record and suddenly, radically changed behavior.

Sorry, that's about all I can dredge up for now, other than the scary phrase "...the employer knew or should have known..."

lhill

These are all excellent points. As far as "employer knew or should have known", I know that is true for sexual harassment (calendars, etc.), but I don't feel qualified to judge whether this is a health problem, nor do I think I should be expected to. I have warned the supv not to go down this path, but stay strictly with performance/insubordination issues.

Tony Kessler

Marc, actually, there were two cases, one out of Illinois and the other out of Maryland. Both were covered in a single article in the Nevada Employment Law Letter of August 2003 ("When are employers on notice of workers' need for family leave?"). The article also appeared in a number of other state letters at about the same time.

To view the article, log in on the home page, and search the newsletter archives. I found it by searching for "FMLA" and including the words "change behavior." Be sure to narrow your search to "Nevada" for "2003," and a link to the article should pop right up. Let me know if it doesn't. By the way, neither situation (in Illinois or Maryland) involved employees' rolling their eyes! One, however, was having trouble keeping his eyes open. tk

Tony Kessler, director of editorial
M. Lee Smith Publishers LLC
(615) 661-0249 ext. 8068