Navigating Sensitive Conversations
A senior executive exhibits behavior that might indicate substance abuse; an employee coping with side effects of pain medication becomes accusatory and combative; an employee seems not to understand the difference between whistleblowing and insubordination – these situations require a firm, timely, and sensitive response that many managers are ill-prepared to provide. Internal business pressures are only part of the problem; many people are uncomfortable addressing emotional issues in a professional setting, feel they lack enough information to act, and have concerns about liability or the encounter itself that can result in procrastination or poor execution. Although these conversations may last only a few minutes (or, if in writing, be only a few lines long), the planning and preparation can be exhausting: a manager can spend hours agonizing over a few lines of speech or text because they’re worried about what will come next. This is understandable; when they lack confidence in their decision, or want to spare the employee’s feelings, managers sometimes stumble upon dangerously vague language that can sound discriminatory or retaliatory: the employee shows a “bad attitude,” “doesn’t speak our language,” or had an “inappropriate response to a management decision.” In addition, even the most experienced managers may be concerned that taking the “wrong” action or saying the “incorrect” thing could lead to litigation, causing uncharacteristic hesitancy on the part of management. Much employment litigation stems from clumsily negotiated encounters of this sort that humiliate both managers and employees, divert resources from growth to damage control, and bruise morale.
The best solution is to plan these difficult conversations before they happen, and we work closely with our clients to develop an approach consistent with their values and business objectives. This includes not only planning the talking points for the meeting itself, but also considering how management can respond to possible questions, comments, or accusations from the employee during the encounter. The process allows us, as employment counsel, together with the manager, to think through the problem from beginning to end and frame it in appropriate terms, including assessing any potential litigation risks. It also provides the manager with a clear objective for the conversation; keeps the discussion on track despite comments by the employee; requires us to consider the employee’s own perspective; and reassures the manager before the meeting, so they can get on with other work. Clients also find that enlisting the aid of counsel makes the experience much less emotionally taxing, and allows them to maintain a high-level, long-range view of their Human Resources objectives. I usually call the plan we help the company develop a ‘script’, but this shouldn’t be taken too literally. These meetings never unfold precisely according to plan, so the manager will have to depart from the script on at least some particulars, and no two conversations are ever alike. But the thought and planning that go into such a template also educates the manager, and helps the employer and its counsel identify any critical factors that need further examination.
To have an effective discussion with the employee, it’s essential for the manager to be able to state clearly what the problem is, why it’s a problem, and how the company plans to address it. If further action is required from the employee, the manager also needs to be specific about what the employee has to do to correct the situation, the time frame for implementation, and the consequences of failing to comply. In my experience, managers struggle most to explain why the situation is problematic. The manager may think the problem is obvious, and sometimes it is, but sometimes when we examine the matter more closely to develop the script, we uncover unstated assumptions or emotional complications. If a manager wants an employee removed because he’s a “bully” who “terrorizes” the staff, but the only examples of “terrorizing” and “bullying” behavior we can find are failing to acknowledge an interruption and failing to say hello in the morning, the matter needs to be considered more closely. The manager may, in other cases, have identifiable behavioral concerns, but avoids mentioning them because he or she doesn’t want to sound petty or unprofessional. By working with the manager to identify the precise rationale for a decision, counsel can help articulate those feelings in language suitable for a business setting.
Consider, for example, the employee whose technical performance is acceptable but whose true passion seems to be indulging in divisive politics and undermining staff morale. Do both the manager and employee recognize that any job has both technical requirements (what they were hired to do) and behavioral requirements (how they’re expected to interact with managers, coworkers, customers, and others), whether or not the behavioral requirements are recorded in the written job description? How can the manager convey that distinction to an employee who may resent receiving discipline for behavioral issues, despite meeting or exceeding the technical aspects of the job? After review of the situation and applicable law, we may decide to script part of the manager’s comments as follows:
We are not here to discuss your job performance, but rather your workplace conduct, which is just as important to your success at Acme Co. as meeting the technical requirements of the job. You have indicated that you’re unwilling to take direction from our Executive Director, and have repeatedly engaged in behavior that appears designed to undermine her authority, such as spreading rumors, making comments that question her honesty, and leaking selective details from private meetings. You’ve also openly commented that you hate working here. As a result, key people don’t trust you, and many employees are so distressed by their interactions with you that they can’t work effectively for much of the workday.
Clearly describing the problem, and how the employer intends to respond to it, are essential to an effective script, but no manager should expect to read a script verbatim and then depart without answering the employee’s own comments. The company’s plan for the meeting should also anticipate the employee’s most likely responses and present reasonable, truthful, and appropriate answers that the manager can call upon as needed:
Comment: I think something else is going on. Other people have done the same things I have, and weren’t fired for it.
Response: I’m not aware of the conduct you’re describing, and no one has brought it to my attention. If you’re aware of something you think we should investigate, you should have told us about it as part of your ordinary job duties. In any event, tell us what you know now, or send me something in writing, so we can look into it. However, that does not excuse your own conduct.
Comment: We both know that you set me up to fail. I didn’t receive any support from the organization whatsoever. You promised me feedback on my work but never delivered it.
Response: I disagree. Our expectations were reasonable, and we gave you substantial support and feedback. You were expected to operate at a level where you took some initiative and ownership of your responsibilities, and it seems clear from where I sit that you didn’t do that.
Plainly, these brief examples may not be applicable to a company’s own specific situation, and each script will vary according to the facts at hand. The plans for these sensitive conversations should be developed carefully, and in consultation with counsel, to make sure the company’s decisions are fairly presented and legally sound. But if prepared properly and reviewed with the manager in advance of the meeting, they can do much to limit the company’s potential liability, convey the company’s business reasons in a way does not leave the employee feeling personally attacked or targeted, and reduce the manager’s anxiety so that they can be more confident and productive in carrying out their responsibilities.
