Pressure to terminate direct report in California

[traderjim]

My manager has been pressuring me to terminate an employee that reports to me. My report has receive good reviews over the past year but has never presented well in front of my manger and can sometimes behave emotionally and defensively when challenged. I've objected to taking action over the past three months, arguing that my report works hard and accomplishes most of her work goals.

Recently my report complained about another employee's behavior, even suggesting it was an act of discrimination. The complaint was forcible enough that I felt compelled to communicate it to HR and my boss. After discussing it with the other employee, we determined that the issue was a result of poor communication, not intentional misconduct.

Shortly after this episode, my manager verbally asked me to move my report's responsibilities to this other employee on the grounds that this other employee would get better results and said that HR confirmed it was not an issue to terminate my report. When I spoke directly to the head of HR, she was less confident that there were grounds for termination but that it was possible.

When asked, my manager would not confirm the decision in writing, stating she would "support my decision".

Besides not agreeing with the decision to terminate my report on professional and personal grounds, I'm concerned that I could be target of a lawsuit by the employee after termination.

What should I do?

[hr for me]

honestly it sounds like both you and your manager have bias (but opposite ones). Personal grounds really should not come into play unless you feel the employer is doing something illegal like discriminating based on gender, age, etc. Personality conflicts are not illegal. In the line of authority, you needed to do what your boss stated and since you have not, you have increased the employer's liability at this point. You put yourself on the line for this direct report by not working with your own manager to resolve it. It's hard to see the sequence of events (3 months vs recent complaint) but it sounds like there were issues prior to the complaint.

Have you mentioned (in writing to the employee or even just documenting conversations) that the employee "can sometimes behave emotionally and defensively when challenged"? How can you give a good review always if this is true? Do you have any documentation (or does your manager) of poor performance/behavior in writing prior to her complaint? Why not? Did you fail to listen to your manager in doing so? Were those instructions in writing? That is can the employer prove there were issues PRIOR to her complaint?

You and HR did the correct thing in conducting the investigation and making sure the behavior of the other employee didn't happen again. That solves that issue. The one to be concerned about is if she claims retaliation for making the complaint (true or not). Timing is your issue.

Your best bet it now to follow HR's lead and direct advice -- since your manager is being cagey, I would suggest getting HR's opinion directly as to how to setup a Performance Improvement Plan or disciplinary process for the next time the employee "behaves emotionally and defensively when challenged". Be proactive no matter which way this path leads. And yes, you have to deal with the fact that it might lead to this employee's termination.

From a personal standpoint, I don't know how many times I (in HR) have had a sixth sense about an employee with small issues that later turned into something large that wouldn't have had the manager listened and not gone personal about the employee. Sometimes direct managers are just too close to the situation (i.e. it's too personal and they have allowed the boundaries to weaken with their direct reports) and someone a step above can see their bias.

[hr for me]

honestly it sounds like both you and your manager have bias (but opposite ones). Personal grounds really should not come into play unless you feel the employer is doing something illegal like discriminating based on gender, age, etc. Personality conflicts are not illegal. In the line of authority, you needed to do what your boss stated and since you have not, you have increased the employer's liability at this point. You put yourself on the line for this direct report by not working with your own manager to resolve it. It's hard to see the sequence of events (3 months vs recent complaint) but it sounds like there were issues prior to the complaint.

Have you mentioned (in writing to the employee or even just documenting conversations) that the employee "can sometimes behave emotionally and defensively when challenged"? How can you give a good review always if this is true? Do you have any documentation (or does your manager) of poor performance/behavior in writing prior to her complaint? Why not? Did you fail to listen to your manager in doing so? Were those instructions in writing? That is can the employer prove there were issues PRIOR to her complaint?

You and HR did the correct thing in conducting the investigation and making sure the behavior of the other employee didn't happen again. That solves that issue. The one to be concerned about is if she claims retaliation for making the complaint (true or not). Timing is your issue.

Your best bet it now to follow HR's lead and direct advice -- since your manager is being cagey, I would suggest getting HR's opinion directly as to how to setup a Performance Improvement Plan or disciplinary process for the next time the employee "behaves emotionally and defensively when challenged". Be proactive no matter which way this path leads. And yes, you have to deal with the fact that it might lead to this employee's termination.

From a personal standpoint, I don't know how many times I (in HR) have had a sixth sense about an employee with small issues that later turned into something large that wouldn't have had the manager listened instead of ignoring my advice, documented the issues and warnings and not gone personal about the employee. Sometimes direct managers are just too close to the situation (i.e. it's too personal and they have allowed the boundaries to weaken with their direct reports) and someone a step above can see their bias.

[DAW]

Several unfortunate truths:
- Bosses have minds on their own. Those that actually have minds. They do not have to agree with you. You however are required to agree with them.
- HR does not run the company. They sometimes get some input, but they also can be told what to do.

[traderjim]

Thanks for your response.

> Have you mentioned (in writing to the employee or even just documenting conversations) that the employee "can sometimes behave emotionally and defensively when >challenged"? How can you give a good review always if this is true? Do you have any documentation (or does your manager) of poor performance/behavior in writing prior to >her complaint? Why not? Did you fail to listen to your manager in doing so? Were those instructions in writing? That is can the employer prove there were issues PRIOR to her >complaint?

There have been three specific situations:
1. The employee left an all-day team meeting (we think to cry in the bathroom) when it was announced that a new manager at her level would be joining her team. Her interpretation of events was that we were cutting her responsibility.

2. When asked to work late on a Friday with no notice by a more senior member of the team who was not her manager, she refused and did not offer a constructive reason. Both parties described the incident differently, and this other employee has a history of confrontation with other people.

3. The employee complained that another team member was attempting to accomplish some tasks that she felt were her responsibility. When she confronted the individual, she claimed the other employee responded unprofessionally (but didn't provide specifics).

There is no documentation about poor performance. Her performance related to explicit work goals has been good up until now. We are approaching first review period when this behavior started and I can specifically reference behavior that could be considered questionable.

My manager has not specifically asked to discipline or remove the employee until last week, at which point I started the process with HR and asked my manager to confirm next steps. Prior to that, I've only received casual comments from my manager that the employee isn't meeting expectations. When that happens, I've asked for clarification and received no specific feedback.

I've communicated explicitly in writing that I will follow through with the verbal request to terminate the employee. The response I received was that my manager would support my decision.

[traderjim]

To be clear, I don't object to following my manager's direction and terminating the employee.

My main concern is that there is no documented cause for termination and that we should be building a case for termination, my manager will not put in writing that she wants the employee terminated, and that I expose myself to legal action.

[HRinMA]

To be clear, I don't object to following my manager's direction and terminating the employee.

My main concern is that there is no documented cause for termination and that we should be building a case for termination, my manager will not put in writing that she wants the employee terminated, and that I expose myself to legal action.

What sort of legal action do you think the employee would pursue? Termination is legal even for no reason or because an employee is being annoying. Unless she is alleging you fired her for a reason that is protected under law, she would not have a case.

[DAW]

The other problem is that it is difficult for you personally to take an action which makes you personally responsible for the termination. Not impossible, just VERY difficult. Almost all terminations are legal. Write yourself an email saying what you were told to do.

Past that unless you are obviously breaking laws, termination law is very subjective. If you think Bob is brass and he thinks he is gold, the judge is going likely think "who cares". Now if you break any actual laws (or Bob claims you do), it can get interesting. Not to you personally, but to the company.

There is no rule that say the boss cannot have his/her head up his/her backside.

[traderjim]

What sort of legal action do you think the employee would pursue? Termination is legal even for no reason or because an employee is being annoying. Unless she is alleging you fired her for a reason that is protected under law, she would not have a case.

Thanks agains for the responses. In my first post, I mentioned that when my report complained about an interaction with a colleague, she referenced being discriminated against. She argued hat this individual was treating her badly because she is a woman, and hinted that the organization overall discriminates against women. Neither I or HR found any evidence of that.

I forwarded the complaint to HR and encouraged my report to discuss it directly with them. She did not do so.


Anyway, thanks for the helpful feedback.

[ElleMD]

I don't know you. I don't know this employee, but just from what little you shared, it ain't gonna get better from here. You have a non-team player, who reacts unprofessionally to normal workplace occurrences (refusing to stay late to help out and not giving a reason, leaving without notice, reacting emotionally based on assumptions without having the facts, confrontations with more than one coworker, being territorial, etc.). The voice of experience often looks like pessimism, but you have multiple instances of totally unprofessional conduct and that is unlikely to change.

I'd go the PIP route since you say reviews are coming up and there are goals not met and be very specific about what conduct is expected going forward. I would also have a witness (your manager or HR) in the meeting with her.

It sounds like this person is a professional victim and while terminating her very well might result in her filing some sort of charge of discrimination, keeping her on doesn't prevent her from doing so either. In fact, the longer you tolerate this behavior and deflection the harder it makes terminating her down the line.

[eerelations]

Even if she does try to sue post-termination, the lawsuit will be against the company, not you as an individual. (This sort of thing does happen, but it's very unusual.)

But the fact that your boss refuses to acknowledge his instruction to you in writing (not even in an email? if you send him an email asking for confirmation that this is what he wants you to do, he doesn't respond?) is concerning. It appears to me he may be trying to set you up for blame.