I work for a very casual landscape supply company. When I say casual I don't only mean the dress code - I mean the HR practices as well including discipline procedures. When I was brought on board last October it was to fill a very large void encompassing payroll, benefits administration, and revamping HR to (at the very least)  bring the company up to compliance with absolutely everything. I have busted my tail to do so and have changed many, many things here - outdated practices & record keeping, policies, etc. But one area I'm still struggling with is their disciplinary procedures. Or maybe I should say THEY are struggling - they consistently do not record conversations with employees, they do not follow any structure when it comes to discipline - one employee might get talked to about their attendance, then suspended without pay later for it & then fired when another employee has repeatedly had complete "melt-downs" and has verbally abused co-workers and management during these outbursts and she isn't even written up.

 I have specifics on these instances and have urged management to follow a progressive discipline structure; verbal warning (all documented), written notice/warning, suspension (if this applies) and termination if necessary. Instead they are all over the board and do not do this. I fear that their sloppy actions (and certain things being talked about in their "verbal meetings" regarding issues) are not only illegal but will be followed up by an employee through an attorney. They take my "advise" on these things and thank me, but still go do whatever they feel like doing. I feel like I'm fighting a losing battle that will get this company in severe legal battles and might drag me down with them. I sit down with management & explain to them that we need to follow the disciplinary procedures for every instance and then I find out someone is fired but never even was officially written up. They claim they had verbal conversations with the employee, but don't even have the documentation to back that up.

 HELP! What do I do??? Oh, and also - in a "disciplinary meeting" this morning with our employee who likes to complain ALL day long (every day) about everyone in this company and then blows up at someone (this time it was the General Manager) she was told that she needs to take accountability for her actions and apologize and then her supervisor proceded to ask her how much of her frustrations were actually work related & how much was due to her personal life including her MS! I couldn't stop her fast enough before the employee said that 50% of her problems were due to her MS & the medication she is forced to take and how most of her MS symptoms are stress-related due to the company. And then she went on to say how she was confused that she could possibly get in trouble for calling our GM and screaming & swearing at him (for reasons which had NOTHING to do with her on a side note) when he yelled at her back. She wants him to be responsible for this situation too. Then when he came over to talk to her (we are in a different building) she was sitting at her desk screaming (about him), sobbing & quite hysterical so he told her to go home. He explained to her in the meeting that not only was her phone call to him and the screaming & swearing at him completely inappropriate and unprofessional but her standing in the office screaming & yelling about what she thought about him & the company and crying hysterically at her desk was not acceptable either and that is why he sent her home. After our GM left her supervisor immediately said she was NOT going to write her up or discipline her (she told the GM she would handle her discipline) but only talk to her and try to make her feel better and be happier. I was in shock! This is NOT the first time she has had a huge outburst and screamed & sworn at someone (ME being one of those people on the receiving end) - she wasn't disciplined that time either! She's been with the company for 3 years and according to all of management has always had an attitude problem and cannot control her temper. I don't know what needs to happen for this girl to get reprimanded for her horrific actions, but I believe it has to be more than the "slap on the wrist" she's gotten over & over. And the unusual thing about it is that her & I are very friendly so it's not a matter of "HR not liking her either" - even after her outburst at me less than 6 months ago. These outbursts are not in private either - they are in the middle of the office in front of everyone else. I don't think it's fair to anyone else here that she can act this way and "get away with it"........I'm dumbfounded and at a loss here. Any ideas as to HOW I can get through to managment? And now that her MS has been discussed isn't she protected by the ADA??? If so, what does it cover? Can she act like this over & over and be "protected" because she has MS????

Have you attacked the problem from a bottom line/financial view?  Are they losing unemployment $s/higher tax rate because of their failure to document?  Have you shown your employers the average cost of settled discrimination claims?  Or turnover costs of good employees leaving but bad ones staying?

Many companies make the mistake of overprotecting a bad employee who has a protected issue (disability, pregnancy, age, race, etc).   Has she asked for any accommodations for her MS?  If so, the employer needs to sit down with the employee to discuss what they can reasonably accommodate.  No employer is required to accommodate bad behavior.  And you can ask her to bring documentation from her doctor on her medical issue, side effects of meds, etc. if those are needed for the discussion. 

Your major problem right now though is that you have NO documentation on her bad behavior so if she were terminated, she could file a claim of disability discrimination and quite possibly win.  Your second problem is that you don't have backup from upper management on making this change or the change to the disciplinary policy.  Until you do, she and others will be allowed to get away with bad behavior...and other employees will notice.

My next plan of attack with the management will definitely be everything you outlined in your first paragraph. If you (or anyone else) has a good place for me to access those things I would greatly appreciate it!

The only accommodations asked & given regarding her MS is parking closer to the building (she does not have a handicapped sticker/plates) which we have given her the front parking spot and to be able to attend her doctor's appointments.  In today's meeting with her supervisor she offered to change her position's responsibilities to accomate her not wanting to have contact with the General Manager's so her attitude and temper will not be effected. But nothing was mentioned to accomate her MS. She has claimed (in general conversation with other co-workers) that her medication and the MS causes her to be depressed and anxious and that she is forced to take an anti-anxiety medication before she gets her shots and refuses to take an anti-depressant on a regular basis. She has been talked to about her attitude when she doesn't want to call customers (for collections, to discuss their account, etc.) because she immediatley has professed that she's not in a good mood so she couldn't possibly talk to anyone on the phone.

I believe her supervisor has coddled her from the moment she hired her. She got a job for her because (her words) she felt bad for her and created a position for her. Now she feels personally responsible for her and "babies" her even more now that she was diagnosed. "She doesn't want any negative energy to be floating around and disciplining her wouldn't help, but cause more distress on her."  How do I handle that? If any kind of discipline is going to be classified as "negative energy" by her supervisor. Word here spreads like wildfire and I can guarantee everyone here knows everything already (or most of it). So everyone else will see that one employee who suffered with some attendance issues was disciplined & terminated and another who is out of control is still here and "nothing happened" to her.

Frustrating? Oh yes! Am I getting stressed & confused? You betcha! What next????

Okay.... I'm going to go there.... If the supervisor can't or won't hold her employee accountable, then the supervisor should be held accountable. I truly feel your pain. I too came to work at an organization that never had an HR department. They were totally out of compliance in many, many areas. I also had to set up a progressive discipine policy. After 6 years I believe that most managers and supervisors are now doing a pretty good job of documenting. They are not allowed to terminate anyone without frst discussing it with me so I can go over their documentation. No documentation = no termination. Clearly to me, it appears this supervisor has become too personally involved with one of her subordinates. Nine time out of 10 this is a recipe for ineffctive supervision.

I don't have all the answers, but I know this -- you are going to have to take a very assertive stand with the managers and supervisors you are dealing with. Who is holding them accountable? I wish you luck. Stick to your guns and eventually you'll make believers out of them.

 

Several problems here.

Sympathy hires rarely turn out well.  People shoul be hired based on job and org fit, not because they've had a rough life and happen to be dating the decision maker's child.

There's no question that you now have an employee who is believed to have a disability.  She says the disability plays a role in her outbursts but her outbursts also play a role in her work performance, which is what this is all about.  Assuming you have a code of conduct or other rules about employees being reasonable with each other, then this person's behavior is violating those rules.  You can now enter into a dialogue with her and seek medical advice as to whether or not proposed accomodations would work or not.  You may uncover that her claim about the affect of her illness is actually false, which would change things significantly.  You can always have a company-wide meeting and address the unprofessional conduct that has historically ocurred and point out parts of the handbook that proscribe such naughty behavior and lay down the law that it ends now.  Of course, you can only do that if you are appropriately empowered to do so.  Stress is a part of work, inflicting stress by disciplining outrageous conduct is acceptable under the law if you have a policy and an even enforcement of that policy.  I don't see many fixes short of getting management buy in and laying down some ground rules for the whole company and then following through.

HRforME is correct in that the right approach to this is discussing how this stuff can hit you in the pocket book.  Most of the information is available at EEOC and DOL websites.  Most legal update seminars have pieces of this information as well depending on the topic.  Another thing you can push on is the personal liability that you can get hit with under some laws, particularly civil rights act (especially in retaliation and willful violation matters) and FMLA.  Are you big enough to have FMLA obligations?

VDavidson is also correct in that the supervisor should be held accountable for the mess (s)he made by failing to address these work problems timely and effectively.  It sounds like you are not appropriately empowered to deal with this.

The supervisor is dead wrong.  If you are in one of those worlds where HR's role is advisory and your advice is being spurned and you have no authority of your own to get this back on track, then you need to get a bigger hammer, which speaks to HRforME's point: go up the chain to find a sponsor to lean on the supervisor(s) to do the right thing.  Worked properly, this could be a sea change for the role of HR in your Company in a positive way.

Where are you located?

I have more to add, but for right now let me say that we are located in Illinois! I'll have more to this story tomorrow......stay tuned!

I'm actually from Illinois (now in TX, of course) and still have some resources up there.  Contact me at txhrperson@yahoo.com if you want to discuss this in more detail.

HR Mouse, after reading your plea (and wow do I feel for you!) and reading all the responses, I can draw one inevitable conclusion. You are going to have a "Come To Jesus" meeting with your supervisors and it's going to come soon. I would prepare by reviewing all of your documentation up to this point. Every conversation YOU had about discipline, every email YOU sent out or received regarding your changes and updates to HR, every scrap of paper, cocktail napkin, and note written on the back of an envelope that YOU scribbled needs to be there. When the supervisors finally have the "CTJ" meeting, you can prove how valuable the documentation process can be.

After sitting down with the employee's supervisor this morning I told her that we need to make sure she & the General Manager document their versions of the meeting last week & the events leading up to the meeting. Since we're kind of still dealing with a "he said, she said" on exactly what the employee said to the GM I want them to write it all down. I also want them to put everything else pertaining to this employee in writing (any further outbursts, etc.) to place in her Personnel File since this company is notorious for not documenting things.

 She had to be spoken to again yesterday because she was angry, upset and pouting because she felt the GM was "giving her attitude" and she expressed to her supervisor that she was upset that nobody told her if HE got in trouble for last week. Personally I am shocked considering SHE called HIM, started screaming & yelling at him (and swearing too according to HIM, but not to her), proceeded to scream & yell in the office and cry hysterically at her desk for almost an hour (in front of all of her co-workers) and ranted & raved about how much this company SUCKS, how everyone here is an a****le, the company is so unfair, she should have quit here years ago, etc. AND to top that off she didn't even get reprimanded because she insisted to her supervisor that her MS is partly to blame and she might have blacked out because she doesn't remember that conversation going like that with the GM, etc. So now with the ADA being involved they want to create a new job for her so she doesn't have to deal with the GM or the customers (she doesn't like to make her collection calls or take calls from the customers), they want to allow her to work at our location which is closer to her house because she is upset that the price of gas is so high, etc. So now we are bending over backwards to accommodate everything for her including her bad behavior. The situation is getting crazier & crazier.

 Can I scream now? Or cry?

Wow HRMouse! This HAS gone from bad to worse. It appears to me that what you have is a bad employee who is holding the company hostage. Aside from her possible ADA situation, is she in any other protected class? I am not an expert on MS by any means. However, I don't think MS causes people to "black out" on go on a screaming rampage. In my opinion, unless I'm missing something here, this employee should be escorted out the door. Wish her a hearty BUH BYE and start training your supervisors on how to properly handle any future employee issues.

Yes - it is completely out of control. I agree - she is a bad employee (mediocre at best when it comes to her actual work) who now sees that she can get away with misbehaving with no repricusions. It's horrible! The other employees see this too and are not too thrilled about it considering another employee was just terminated for poor attendance. They've verbally expressed that the other employee getting fired for being late and his car breaking down is way less a big deal compared to her actions, but nothing happens to her. Not so great for morale, huh?!

I'm so frustrated! I think we are definitely going to ask for medical certification from her doctor (her neurologist - not her chiropractor/nutritionist she sees once a week) to see if her blowing up at people, screaming, swearing, temper tantrums, memory loss, etc. are typical of her condition and/or the medication she takes and has taken. Although I'm not a medical doctor I DO know a little bit about MS (family members who have it) and as far as I know outbursts, swearing, blacking out, etc. are not a symptom of MS or the medication. I'm going to do some of my own research through our Insurance Company and Pharmacy just to be more familiar with everything I will be dealing with medically speaking. I have a good feeling that her neurologist will NOT come back to us with documentation explaining her behavior as "normal". As for the medication - well, I know for a fact that she has only been on medication for MS since about February of this year, she went off of it completely for more than a month in defiance to take a more "natural route", and just went back on it maybe 1-1/2 months ago (2 months ago tops). Her outbursts & tantrums have been going on for years now so I'm fairly certain the medication is not to blame - she just has a bad temper and doesn't know when to take a breather and calm down before she opens her mouth. She unleashed on ME back in December (before she was even diagnosed with MS) in front of the whole office & again wasn't even reprimanded. She was talked to by her boss and was told she had no right to do that and she would need to try and get along with me. "Sigh" Her supervisor told me yesterday that if she were any other employee (one not protected by the ADA) she would have been fired. BUT because she is so afraid of her suing us for discrimination she doesn't want to do anything - she said she feels the employee is just looking for a reason to sue us. Apparently she mentioned to her supervisor that she is verbally abused by the GM and our IT Tech (an independant contractor) gives her the creeps & she feels he sexually harrassed her and the company isn't doing anything about it. We're allowing these people to abuse her and get away with it so she shouldn't get in trouble for anything SHE does either. The employee is NOT protected by any other class, by the way. I let her supervisor know that just because she is protected by the ADA does not mean she can act inappropriately and get away with it! I guess now I have to be 200% sure that we are doing absolutely everything the correct way and be able to convince her supervisor and management that we are taking the proper course of actions & the company will be prepared for whatever may come. In the mean time she has been offered a different (and cushier in my opinion) position to accommodate her unwillingness to "play nice" with the General Managers and our customers. She will not have to talk to anyone and just do paperwork while I pick up her slack in her department.

I'm sure there will be much more to this story - stay tuned if you love drama!

I don't think it is wise to let her go just yet.  No documentation, which is a nice way to set yourself up for a retaliation claim.  The problem is made worse by the fact that the company has condoned her behavior for a long time in the past.  Why dismiss her now?  Plaintiff's attorney will argue it's because you now know that she's a qualified individual with a disability.

You really need to have someone in charge there get advice from an employment law attorney so they can see that you have been steering them correctly here.  That will help build credibility for the HR function.  In situations like this, I typically send a straight-talk email about the problems with what is being done and what the potential risks are and I BCC: my personal email.  "Dear Decision Maker: This note is to document the HR perspective on the situation with Ms. Attitude, who appears to be a qualified individual with a disability...[stuff about not handling her discipline timely] [stuff about not handling her possible accomodation correctly] [stuff about why this is all wrong and could potentially end up costing the company a lot of money]"

The last thing you want to do in an ADA accomodation is make a new job.  That will not go well for the company down the road.  One major reason why is because there is no scope or limit to possible accomodations now (with the possible exception of cost).  If those accomodations don't work, what new job will you conjur up next for her?  If you do nothing else, stick within the requirements of ADA.

So going to an employment attorney would be our best bet as the next step?  I know the employee is aware that before I came on board with the company (back in October of 2007) there were no real HR procedures in place, but now that I am here I have been re-vamping the entire HR Dept along with the policies & procedures from A to Z. Taking progressive disciplinary steps is one of those things I have been pounding into all of management's head for quite a while now - so I'm hoping that if we take those steps to discipline her appropriately for her outbursts, swearing, insubordination, etc. it would be a good thing. Any thoughts on that? Could her supervisor actually go back NOW & say that the meeting they had with her last week will be considered a Verbal Warning / 1st step in the Progressive Discipline ladder? Probably not, but I'm just curious.

 And making her a new job - that would be a bad thing? They want her off of the phones with our customers (and other employees) since she can be hostile & rude and doesn't get to the requests being phoned in in a timely manner. And also they don't want her talking to the GM's since they seem to always upset her. I guess you can say they are terrified to discipline & eventually terminate her, but at the same time they are very unhappy with her work performance and attititude so they feel the best thing to do is to change her responsibilities. Are we in a Catch-22?

The situation is complicated and there are a lot of missteps you can make.  I think you should call an attorney.

Yes, making a new job is a bad thing for the reasons I mentioned above and others as well.

One of the reasons why I think you should talk to an employment law attorney is that your power over the situation is not well understood.  The internal politics, leadership's valuation of HR, your formal power, the specifics of your policies, handbook, other documents are not available to us here.  You need to talk to someone with feet on the ground who can talk to the various other parties (e.g., the GMs, the owner, whomever is calling the shots over there) and see the documents and give sound legal advice.

I know what I would do if your situation was happening where I am, but I also understand our policies and practices, and the power structure in the Company.  I also believe I have a strong grasp of the risks.  I cannot be sure that you do without a whole lot more typing than I think we can accomplish here in a time frame that yoru situation will tolerate.  I would not let it go on unaddressed for long and I would be concerned about it being addressedd improperly by business managers and operations supervisors.

TXHRGuy has given you good advise. It will be worth whatever your attorney charges in order to make this a clean termination. Just as an FYI - in our progressive discipline policy insubordination is considered a serious violation and the employee can expect immediate termination.

Good luck HRMouse and keep us posted. This is a pretty unique case and I'd like to hear how it plays out.