I know; the title of the topic seems obvious.  Of course, we are usually not terminating exceptional employees.  But there are underperforming employees, and then, there are the ones who have been making our lives miserable.  The ones who challenge our every directive.  The ones who produce an AI generated diatribe in response to every counseling session.  The ones who, frankly, don’t seem entirely stable.

You’ve all had them – they are your problem children.  And their terminations should be handled with care, lest they become your next employment lawsuit.

First, let’s talk about why we are seeing an increase in challenging employee behavior.

The rise in unfiltered social media has influenced more than one generation’s worth of workers.  And you avoiding it does not deter that influence.  Social media is here to stay in our lives, all our lives, whether you personally embrace it or not.  I remember when Facebook first emerged.  One of my clients said he was vehemently staying off, because he did not want his images all over the internet.  He said his wife and daughters were both on Facebook and could see the effect.  I laughed and said, “if your wife and daughters are both on Facebook, so are you.”

But more importantly, social media impacts society.  It moves the needle.  Knowing and learning about it helps us to better respond.

The influence of social media drives the next societal trend, and that is, the ability to change the narrative.  We see how that has shaped our political landscape, not only in this country, but worldwide.  People live in their own echo chambers.  But that echo chamber, also known as confirmation bias, provides the ability for individuals to validate their own decisions as correct.

In the workplace, it translates into the following theme: nobody is the villain in their own story. They are either the hero or the victim. And because of this, they will deflect criticism and refuse to take accountability for any failings.  And if you, as the employer, attempt to criticize their performance and make them “the bad guy,” they will respond by attempting to shift that narrative.

I heard an interesting analysis on a WSJ podcast this weekend.  The host was examining a survey regarding GenZ workers. The survey found that a large percentage of employers were dissatisfied with their GenZ employees’ performance and  work ethic.  However, the workers themselves reported that they had been insufficiently trained in school to prepare them for work life. They labeled their “lack of work ethic” as being disrupters and resisting traditional and dated work practices.

Sound familiar?

Before you malign this youngest generation of workers, remember, none of this is new.  Oh sure, the advent of social media is relatively recent.  But I recall my parents grimacing at images of the “hippies” on television. “Kids these days” has been a phrase used long before I began practicing law.  Today’s disruptors were yesterday’s “hippies.” Kent State was 55 years ago this past weekend.  Those recalcitrant rioters were baby boomers.   And Roger Daltery was singing “I hope I die before I get old.”    Roger is now 81.

About 15 years ago, I did a program about the influence of millennials in the workplace.  I called them “the swipe left” generation, based on their ability to go on apps and pick a new partner, job, house, whatever looked good in the moment.  Many of those millennials are now you all – running businesses and holding management positions.

The world keeps on turning, my friends.

So that is the context for the syndrome.  But how do we manage it, as employers?

You may not be able to change someone’s perception of themselves, but you can control YOUR narrative.  And your narrative is the official storyline of the employer.   In the 1980s, I was a young associate, starting to speak to employer groups.  My very first talk was called “Who’s the Boss,” and it told employers how to take control over their workforce.   You’re still the boss.  Let’s talk about how you own it.

(1)    Make clear your expectations, from the start.  Including job descriptions with applications, offer letters, or in onboarding packages can help set the tone.  Review yours and make sure they are current and include goals, objectives, and physical requirements.

(2)    Next, hold employees accountable when they fail to meet your expectations.   And do it from the start.  If an employee is not performing early on, meet with them to discuss the issues.   Communicate early and as often as needed.

(3)   And here is the key.  DOCUMENT!  As the kids say, if there is no photo, it didn’t happen.  If you do not document these performance issues, and any discussions surrounding them, it’s as if they did not occur.

Many of you have been besieged by these pedantic emails, texts, and letters from employees, attempting to reframe reality to fit their agenda. Yes, they are AI generated.  But this is when you need to take control. Respond in writing.   When you document employee misbehavior, or when you respond to an employee’s complaints, assume your document will be read by a third-party, and assume that third party is not your friend. Craft your documentation with the level of care, detail, and respect that you would be proud to show an agency, attorney, or maybe even a judge or jury.  This is YOUR story.  This is your chance to write it.  Then, if it eventually comes time to part ways with this employee, you will have prior documentation in place to reference.

Regardless of what you have documented previously, confirm the reasons for termination in writing.  I know I have spoken about this issue in prior Briefings, but it bears repeating.  Other than the arbitration agreement, this termination letter may be the most important document you can create.  This is the finale to the story you have been writing.   Be direct and don’t sugarcoat the issues.   Refer to any prior meetings or counseling sessions, even if they were not in writing.  You can still control that narrative.

(4)   Prepare for any backlash before you pull the trigger.  If this employee is truly unstable and you are genuinely concerned about violence, call for reinforcements.  Never hold a termination meeting alone.  Hire security if your concern rises to that level.  Also, prepare for any possible legal repercussions.  This is the time to confirm that all wages, including missed break pay, accrued but unused vacation, outstanding earned bonuses or commissions, is all included in that last paycheck.  Don’t hand this employee a PAGA case. 

And of course, reach out to us.  We regularly review final termination paperwork, personnel files, and final pay issues.   I’m managing a few as I write this.   We can also help with legally enforceable severance agreements, if appropriate.

Speaking of PAGA – remember to do that compliance!  I’ve been meeting with several of you to conduct audits and review employee documentation, and you all know how many issues we uncover.  Better we find and correct issues than the lawyers who meet with these angered employees we just terminated.