If you have to terminate an employee for poor performance, and it’s a surprise to the employee, you could wind up on the wrong end of a verdict in a lawsuit. Your best prevention (or winning strategy) is to communicate expectations clearly up front and to provide regular, candid feedback.

Ridiculous as it sounds, “they never told me” is a standard defense in employment lawsuits. It plays to the jury’s sense of fairness, and it plays pretty well. Organizations must train their supervisors to communicate expectations effectively in order to combat this defense.

 ‘Surely They Know What I Want’

Supervisors don’t like confronting their employees about performance problems. Some aren’t specific in defining expectations up front. They assume that an employee should already know. Even when they perform annual performance reviews some employers tend to tiptoe around the employee’s shortcomings. The boss assumes the employee knows he isn’t performing up to snuff.  Meanwhile, the employee assumes that everything is fine unless she is told otherwise. Then if there’s a termination and the employee is surprised, they fight back—in court.

In front of a jury “they never told me they were displeased with my work” becomes a poignant plea for justice and the jury is likely to agree. In contrast, think of the same jury, seeing a clear trail of formal performance appraisals and informal counseling that shows that the company tried to get this employee up to an acceptable performance level. The jury is likely to decide in favor of the employer that gave a wayward employee every chance to improve.

What can you do? Train your supervisors to set good goals with employees. It’s easy to set good goals if you follow the Four M’s—Meaningful, Measurable, Makeable, Mutual.

 Meaningful

  • Broadly based on and supporting the organization’s mission and strategy
  • Directly linked to division and departmental goals
  • Important to the organization and individual (relating to their job)

 Measurable

Goals with no measures attached do little to motivate employees. They are nearly meaningless at appraisal time since they are open to different interpretations by the employee and the boss.

Some examples of vague goals:

  • Do a better job at X
  • Shake things up
  • Bring that average up a little

Try these goals instead:

  • Increase production of X by 8 percent given an overtime budget increase of 5 percent
  • Bring the average truckloads delivered per month to 230.

 Makeable

A goal set so high that there is no hope of achieving it is demotivating even to the best employee, and it sets him up for failure. A goal that’s no challenge is a gift, not a goal. Invest time to find a reasonable balance.

 Mutual

Finally, goals should be mutually agreed upon. It’s important to have “buy-in” from the employee and it eliminates the complaint that “I didn’t know the goals or understand them.”

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