We all learned basic math in school. Add three numbers together and you get a predictable result. Conversely, adding three negative numbers together also provides a predictable result. “Employment Math” works the same way. Here is the formula that employment lawyers see frequently:

1 Poorly Trained Manager + 1 Low-Performing Employee + 1 Poorly Worded Policy = DISASTER

It usually starts innocently enough. An employee isn't performing well. The manager gets frustrated. The manager finds the employee handbook, discovers a policy that sort of applies, and decides to handle the situation independently. What could possibly go wrong?

Policies are supposed to provide guidance. But a poorly drafted policy can become a legal obstacle course. Maybe the employee requested a schedule change due to child care issues, and the manager approved, even though they were hired to work a fixed shift. Or the handbook says employees"shall" follow progressive discipline, but management wants to jump directly to termination for the first minor infraction.

Lesson: Before relying on a policy to discipline someone, make sure you understand what the policy actually says—not what you wish it said.

THE ROGUE MANAGER

Then there is the manager who says, "I don't need to consult with HR. I've got this." Those words have generated an impressive amount of employment litigation. For example, the manager makes a promise that wasn't authorized, gives an employee a "final warning" that doesn't follow company procedures, or changes the employee's work assignment  because "that's what we do with people who don't cooperate." And then HR gets involved—usually after the employee has complained, threatened to use a lawyer, or produced the manager's unprofessionally worded text messages.

Lesson: Managers should manage. HR or outside employment counsel should be consulted before the matter becomes a legal situation.

THE DOCUMENTATION PROBLEM

A manager may genuinely have a long history of failing to address performance problems or only having verbal conversations. However, creating a record is paramount. Employers should communicate performance expectations, apply standards consistently, and document the factual basis for performance and disciplinary decisions. Documentation does not have to be as long as War and Peace. A simple, contemporaneous record of what happened, what was discussed, what is expected going forward, and what happens if the problem continues can be enormously valuable.  It should also be documented with a copy provided to the employee, not just to the secret file.

AND THEN COMES THE LAWSUIT

The employee is terminated. The manager feels relieved. HR exhales. Then the lawyer's letter arrives or the lawsuit is served. Suddenly, everyone is searching emails, Teams messages, slack channels, Google chat, text messages, voicemails, phone records, personnel files, old performance reviews and—most importantly—the handbook.

And that is when someone discovers that the employee was disciplined under a policy that wasn't actually followed, another employee committed the same offense but received no discipline, or perhaps the manager used a derogatory slur in an email when referring to the employee.

THE SOLUTION

1 Clear Policy + 1 Trained Manager + 1 Call to HR + Consistent Documentation = Fewer Headaches

Before disciplining or terminating an employee, ask:

• What does the policy actually say?
• When was the last time it was updated?
• Has the policy been applied consistently?
• What does the documentation show?
• How have we treated similarly situated employees?
• Is there a potential leave, accommodation, discrimination, retaliation, wage-and-hour, or other legal issue?
• And, most importantly, has anyone talked to HR before maing a final decision?

Good employment practices are not complicated math. But skipping the basics can make the equation considerably more expensive.

When in doubt, call HR. And if HR is calling the employment attorney, please call before—not after—the manager says, "Oops."