CHAPTER 15
Special Circumstances

The special circumstances outlined in this chapter don’t easily fit into the other categories in this book. As you read through this chapter’s topics list, however, you’ll see how truly significant they can be. For example, knowing how to welcome employees back to the company after having completed a leave of absence (especially from stress leave) is so important both for the individual and the group. Expect group feelings of resentment to fester if left unaddressed. Proactively tabling the group’s perceptions of resentment or anger in advance of the employee’s return and then gathering everyone to redefine roles is a smart management move that will ensure a smooth transition for all parties involved.

Dealing with employees in crisis is a topic of utmost concern when you sense that someone is feeling isolated, paranoid, or otherwise troubled. On one end of the spectrum, you worry about the individual’s self-esteem and sense of well-being; on the other end, you worry about workplace violence, injury, and even death. In fact, homicide is one of the leading causes of workplace deaths, so in many ways, this chapter may be the most important in the entire book.

It likewise stands to reason that you’ll need to know how to move threatening employees off your premises safely. Investigatory administrative leaves allow you to do just that, preserving the individual’s dignity while continuing his pay, so that you could conduct a fair and unbiased investigation. If termination becomes necessary upon completion of your investigation, the employee will already be off-premises, and you’ll have time to alert your security, operations, and front desk reception areas with instructions not to allow the individual access to company property.

Note that in all these cases, the impacted employee will be treated with dignity and respect. In addition, company benefits, like an Employee Assistance Program (EAP) or mental health plan, might be extended beyond the individual’s separation date to provide for additional support for the ex-employee and his or her family members.

Again, the beauty of these verbal discussions is that little preparation time will be needed, thanks to having this book on hand. And you’ll likely find that anticipating employees’ reactions to various types of special circumstances will help you navigate them very successfully and with very little turbulence because of your proactive and open management and communication style.

Scenario 96: Welcoming Back Employees Returning from a Stress Leave of Absence

When employees go out on a leave of absence, the remaining employees in the group must make up that individual’s work until she returns. True, you can always hire a temp for the duration of the leave; however, temps require a lot of training time to become fully participating members of the team. And temps can only do so much. Each of the remaining staff members will often assume additional responsibilities until the employee on leave returns.

Generally speaking, employees tend not to be judgmental when a coworker goes out on a leave for medical reasons. In fact, people often feel that the ill coworker should just focus on getting better, while they happily assume her responsibilities for the interim recuperation period. However, when it comes to a stress-related leave of absence, coworkers tend not to respond as favorably. Regardless of the merits of the situation, many employees feel that stress claims are bogus, especially if there were hard feelings just before the leave was initiated. The employee who took the stress leave may be perceived as having run away from a situation and having left her peers in the lurch. As a result, she may be greeted with cold shoulders, hard feelings, and avoidance.

The Solution

If you sense that there will be problems once a returning worker comes back to the office, it’s best to address those issues proactively with your staff, recognize their frustrations without passing judgment, and focus everyone on moving forward in a positive spirit and with best intentions once your staff is operating at full capacity again.

Plan on holding two group meetings: One for the small group, which should take place before the employee in question returns to work, and one for the entire group, including the returning employee, once she’s back at the office.

In the first meeting, everyone gets a chance to air their grievances or perceptions of unfairness openly in a safe environment. You can then set your expectations of how the group should proceed once the returning worker is back at work.

Before the second (full group) meeting, you’ll have a chance to welcome back the returning worker one-on-one in your office. You’ll also be able to gently share some of the frustrations that others in the group have now disclosed to you. In that way, you can prepare the returning employee for her reentry into the working environment, giving her a heads-up that while her coworkers may feel a bit frustrated by the timing and events surrounding the original leave, all are on board in terms of reinventing their working relationship as a team.

You’ll also be able to hear her side of the story during your one-on-one meeting, which may have been festering in her mind since the time she left, with no one to tell it to. Hearing her side of the story will certainly help you bridge the hard feelings that may exist on both sides, which is something you’ll want to address in your second, larger group meeting. You’ll likewise inform her that you expect some flexibility and open-mindedness on her part to give others the benefit of the doubt and to assume good intentions as she transitions back into the work environment.

Here’s how your initial meeting with your (smaller) staff might sound:

Everyone, I’ve called this meeting to let you know that Patty will be returning to work next Monday. She’ll have a full return-to-work release with no restrictions, and I wanted to meet with you all in advance to discuss a few things: First, how we’ll divvy up the work now that she’ll be back, and second, how you’re all feeling about her return. I’ve heard that there may be some hard feelings out there regarding Patty’s situation before she left on the leave of absence, so now’s the time to discuss this before she returns next week. Who would like to start? We could either address the work allocation itself or any feelings or perceptions regarding Patty’s return to the team.

This initial opener gives the staff members a chance to ask business questions or share their concerns about Patty’s return. You may hear that things have been going so well since she left, everyone loves the temp, and there’s a fear that her return will create more drama, havoc, and histrionics than the department has had to deal with since she left.

Remember, the purpose of this meeting is to allow the employees to vent their frustrations freely about how they actually feel—not to be given a lesson about how they should be feeling about the matter. Even if all agree that Patty’s return will be problematic for a number of reasons, hear your staff out and ask them how they feel this should be ideally handled by the team.

Once you’ve listened to their recommendations, acknowledging that hard feelings may be understandable under the circumstances, ask them what they could do to make the situation better. After all, it takes two to tango, and more likely than not, both sides have some responsibility in creating the problematic situation that existed prior to her initial leave.

Finally, with those suggestions duly noted, lay out your expectations for Patty’s return:

Okay, I’ve heard you all, I appreciate your honesty, and I respect where you’re coming from. However, now we’ve got to move forward. I’m planning on meeting with Patty one-on-one on Monday morning to welcome her back, and I plan to share these issues with her very gently but honestly. I’ll also ask her for her side of the story, because she’ll certainly have some legitimate points on her end. And at that point, I’m calling a meeting later in the morning for us all to get together. I’ll mediate the meeting, share with you all what Patty’s side of the story is (and allow her to do the same), and then we’ll determine how to best move forward as a group. Know, though, that I have very high expectations of all of you, and I’m asking you now, for my sake, to welcome her back in a spirit of openness and goodwill so that we all have a chance to reinvent our working relationships and start fresh. Do I have your commitment? [Yes.]

When Patty returns on Monday morning, you might likewise welcome her back in your one-on-one meeting as follows:

Patty, I’m aware that there may have been some issues happening between you and some other members of the staff prior to your leave of absence. I’m not judging you or them: It takes to two to tango, and my guess is that there were issues on both sides of the equation that made things less than ideal. Is that a fair assessment on my part? [Yes.]

Okay, then the purpose of my private meeting with you this morning is two-fold: First, to welcome you back and let you know that I’m glad you’re here. Second, though, is to share with you some of the concerns and frustrations that the team has had with you prior to your leaving, as well as to hear your side of the story. Right after our meeting, I’ll invite you to join me with the rest of the team so we all have a chance to set up our new expectations on a go-forward basis. Don’t be nervous about that meeting. I’ll take the lead and make sure everything is handled professionally and politely. But I’d like to know if you’re excited and happy to be back or if you’re hesitant and anxious right now. If it’s the latter, I’d also like to discuss maybe why you feel that way and what we could do to help.

Finally, in the group meeting with the entire team, open your meeting this way:

Thanks for attending this meeting, everyone. As you all know, I met with the team last week to discuss Patty’s pending return. Now that she’s back, I met with her this morning to welcome her back and let her know about some of your concerns with her returning to the team. Patty heard everything that you all had to say, and she also shared with me some of her frustrations and hesitations about coming back, which is what I asked her to do.

I want to spend some time discussing several of the concerns on both sides, and then I want to move on so that we can pick up and move forward. Understand why I’m doing this: I’m prepared to extend an olive branch and call a truce, and I’m also willing to assume some of the responsibility for the problems that existed prior to Patty’s leaving. However, I want you to know that I expect you all to extend an olive branch as well on both sides, to assume good intentions until proven otherwise, and to hold all of yourselves accountable for being a part of the solution. Do I have all your agreement that this is a reasonable course of action? [Yes.]

Good! Then let’s begin our discussions. Patty, the group’s main concern about your returning to work was […] When I asked you about that, you said that you had a similar concern, namely […] Now let’s open up the discussion, remembering that whatever you say has to be said in a spirit of constructive criticism and with the other person’s best interests in mind.

Congratulations! You’ll have created a safe place for your employees to vent their frustrations, an open-minded approach to Patty’s return to the workplace, and an agreement in advance for everyone to work together in a spirit of cooperation. That enlightened leadership that you’ve just demonstrated will not only help your employees navigate Patty’s return and reintegration into the group, but it will also teach them how to handle these types of challenges in the future so that neither confrontation nor avoidance results.

Scenario 97: Dealing with Employees in Crisis: Isolation

The first sign of abnormal employee behavior typically reveals itself in the form of isolation from the rest of the group. And a methodology exists for proactively addressing an employee slowly but surely moving into isolation mode. However, it typically takes some creative engineering on your part because this often shows itself as “one against the mob.”

The Solution

Workers vulnerable to irrational acts typically appear as loners who are isolated from the rest of the group. These people often develop a time-clock mentality where they go through the motions of doing their jobs day in and day out but are otherwise disengaged. Extending a helping hand to those who have extricated themselves from the social group over a number of years is a daunting task. Many managers will simply take the path of least resistance and avoid the “oddball” employee whenever possible.

However, left in a vacuum void of information and two-way communication, these “foxholers” tend to create their own versions of reality. Generally speaking, such individuals may tend to demonstrate a combination of entitlement mentality and victim syndrome that makes it hard for them to accept help. It makes it just as hard for others to want to give them help. As such, they may attribute negative intentions to others’ actions where none are intended to justify their anger. What these loners may need is an opportunity to reconnect to the group and enjoy the social elements of work such as recognition and appreciation for a job well done, as well as a sense that they belong and can make a positive difference in the workplace.

For example, let’s assume you’re a newly hired hospital administrator responsible for overseeing a staff of a half-dozen nurses in a particular wing of your hospital. Five of the six nurses get along well with each other. They engage in healthy banter, cover for each other when one goes on break, and they answer other patients’ call lights should the primary nurse be engaged elsewhere on the hospital floor.

One member of the team, however, holds out stubbornly in terms of engaging with the others. You learn that she’s been employed the longest, she used to be known as one of the nicest nurses on staff but has long since given up on trying to make others like her, and she seems to find fault with most people around her. As a result, there is little communication between the two sides. There are no exchanges of hellos or goodbyes, and the environment is at best strained whenever forced interaction occurs. Worse, patient care suffers as patients’ call lights go unanswered whenever this particular nurse is on shift.

Your first step will always be to meet with your staff members one-on-one to learn how they view the situation. Ask questions like these:

How would you grade our group in terms of camaraderie and teamwork?

How do staff members get along with each other, and have you had any particular problems with other members of the group?

Are you aware of any particular historical problems among the team members, and could you tell me how they were or weren’t resolved? Did anyone disengage after any particular incidents or otherwise appear to be isolated or abandoned from the group?

What would you recommend we do to better the situation?

I’ve got to ask a favor of you. If I attempt to bring peace to both sides of this rift, would you support me and welcome that particular nurse back into the fold?

More likely than not, you’ll hear fairly consistent stories and explanations of the ongoing strife with each employee group, and you’ll probably see both sides of the story objectively and have a better understanding of how the fallout came to be. With each individual’s commitment to do her part in bettering the situation, it will then be time to hold a group meeting.

The group meeting might open like this:

Folks, life is too short. We spend more time with our coworkers than we do with our family members, and there’s certainly more than enough work to go around. What could make this unbearable for all of us, though, is the negative environment that we create because of a lack of communication, harbored unresolved resentments, or a perceived lack of respect in terms of how we’re treating others.

You know that I’ve met individually with each of you to learn about this historic rift, and as you might guess, I heard the same exact arguments being murmured by members on opposite sides of each other: One person says she’s not respected, and then the person on the opposing side says she’s not respected. One person says that she’s not kept in the communication loop, and then the person on the opposing side says she’s not kept in the communication loop. In short, it appears that you’ve all created an endless cycle of self-inflicted misery. The way to overcome this is to heal the rift between you by giving yourselves the benefit of the doubt and treating each other with respect and dignity.

I want you to know that I’m holding each of you accountable for creating a work environment where everyone is treated respectfully. I’m also holding you fully accountable for your own perception management, meaning that it’s not just about right or wrong. It’s about ensuring that others understand your good intentions and are made to feel welcome in our department.

I realize that this situation may have taken years to get to this point, and I’m not naive that it may take just as many years to get to a point where there’s a natural trust and respect in your interactions. But people tend to respond in kind, and if you treat others respectfully, they’ll do the same to you. I’m here to ensure that that’s the case, and I’ll be here for each of you should you need me.

Please understand, though, that I won’t stand for missed patient call lights or any attempts at placing blame on others. I also won’t have any members of my staff feeling singled out or otherwise isolated from the rest of the group. In short, if the current situation keeps up, then there will be disciplinary consequences. On the other hand, if you support me in making this a more inclusive working environment, then we could all begin to let bygones be bygones and discover new ways of adding value to our hospital’s patient care system. Can I count on your individual and group support? [Yes.]

Allowing people to feel safe about coming out of their foxholes will do more than anything else to avert harbored resentments and animosity in the workplace. In addition, although you can’t mandate that the five nurses like the one or that the one likes the five others, you can set simple workplace expectations regarding communication, respect, and courtesy. Document your efforts clearly so that you have a record of the attendees as well as the date and time of the meeting. This way, should certain players not be willing or able to get along or get past their historical differences, your future progressive disciplinary warning can rest on this foundation that you’ve built (i.e., the nature of your verbal intervention as well as the expectations and consequences that you outlined during your group meeting).

Scenario 98: Dealing with Employees in Crisis: Suicidal Concerns

How do you deal with an employee who states that he’s feeling suicidal? Although such occurrences may be rare, they’re exceptionally serious and something you want to be prepared for should such an unfortunate incident come your way.

The Solution

Rule number one under such extreme circumstances is to get internal help fast. Make sure that your corporate human resources group and/or legal counsel is aware of any threats of self-inflicted violence. Working in tandem with your human resources and legal support group, you’ll want to steer the troubled employee in the right direction by availing the person of the appropriate resources.

For example, if your healthcare insurance provides a mental help hotline, it may make sense at this point to convince the employee to make that call with you together from your office. Similarly, if your company employs the services of an Employee Referral Program (EAP), reach out to the EAP counselor for immediate help together with the employee. (For more information on how to locate a qualified EAP in your area, contact the Employee Assistance Professionals Association, Inc., at www.eap-association.org.) Once an appropriate professional is on the line to talk, you can step out of your office to give the employee and the counselor privacy.

Let’s look back at our story outlined earlier in Scenario #97. What if the individual nurse in this case continues to feel even more isolated from the group and reports to your office one morning saying that she’s feeling suicidal? Assuming your company offers either mental health benefits through its healthcare insurance plan or retains the services of an EAP, it may make sense to tell the employee:

Cindy, I want you to wait here with me in my office. Let’s call our EAP together, because I’m not your best resource if you’re feeling that way, and I know that Marilyn Jones at the EAP would certainly help. Will you wait here with me and let me help? [Yes.]

Good. I’ll get Marilyn on the line right away, so just stay with me here in my office while we do this together. I’m happy to help, and this way we can get you the support that you need.

Caution: Making a referral to an EAP should almost always occur with the employee’s consent. In such cases, the referral is known as voluntary because the employee, in essence, self-refers. That’s why it’s so important to get the employee to agree to speak with the counselor and why it’s in your company’s best interests to get her to do so.

However, in extreme cases where a formal (aka “mandatory”) referral may be warranted, you must ensure that the employee has a job performance problem in addition to appearing to be mentally depressed, suicidal, or potentially hostile. In the case of formal referrals, you would discuss your perceptions of the work performance problems with the intake counselor on the front end as well as the concerns you have about the person’s current suicide comments (although not necessarily in front of the employee). You would then inform the employee that speaking with the counselor is required at this point.

In certain cases (for example, with potential workplace violence or suicide issues), you have the option of not permitting the individual back to work without a fitness for duty certificate from a licensed healthcare practitioner. (With a signed release from the employee, the EAP would later be able to provide you with limited feedback about the individual’s attendance, compliance, and prognosis.) Note that such leaves are typically paid through the initial period of evaluation. Beyond that, employees typically use accrued time off to be compensated while receiving further treatment.

Special Note

One caveat about formal EAP referrals is that although they may certainly be justified in cases of threats of employee suicide, recent case law shows that formal EAP referrals have created burdens on employers under the Americans with Disabilities Act (ADA). Specifically, plaintiff attorneys have argued, on the basis of a mandatory EAP referral, that the employer did indeed perceive that their client was disabled. (The ADA and some state disability discrimination laws protect individuals who either have or are perceived as having a disability, including a mental disability.) Such an interpretation could become legally problematic should you then decide to take some adverse action (especially termination) against the employee.

In addition, you shouldn’t mandate that an employee attend treatment sessions by threatening termination for not doing so. Such a requirement could appear to make an EAP referral an extension of your disciplinary authority and give rise to claims of disability discrimination based on a perceived mental disability, invasion of privacy, or misuse of confidential medical information in certain states. That’s why you’ll want to coordinate this both with a qualified mental healthcare provider as well as your company’s lawyer.

Scenario 99: Dealing with Employees in Crisis: Homicidal Concerns

Statistically, most cases of workplace violence occur on Monday mornings. And that’s because managers mistakenly make terminations happen late in the day and late in the week—typically on Friday afternoons around 5:00 P.M.—so that the occurrence becomes “out of sight and out of mind” for the rest of the workers on staff.

In reality, however, denying terminated employees access to people and additional information at the time they are most vulnerable is deeply disturbing, especially to a troubled mind. That’s why it’s always best to terminate early in the day and early in the week—say on Monday mornings—rather than on Friday evenings. When troubled employees are left to tend for themselves in a vacuum over Saturday and Sunday, then Monday morning all too often becomes the time to dole out retribution in their troubled minds.

Following up on the continuum of the previous examples, what if an employee reacts by making veiled threats of homicide after those initial suicide comments? Specifically, what if an employee came to your office one morning, placed a live ammunition shell on your desk, and stated that her coworkers better not bother her today “if they knew what was good for them”? Pretty creepy, to be sure, but veiled threats like these are not uncommon in extreme cases.

The Solution

Your first reaction would probably be to fire this person and ensure that she has no further access to company property. And that may be the best decision for your organization in the end. Still, it’s probably best to make a record that you didn’t overreact or jump to unfair conclusions. In such cases, placing the employee on a paid administrative leave might make the most sense. Explain your rationale to the employee this way:

Kristine, I know you met with our EAP provider, and they gave us a written release for you to return to work. You also told me that you were feeling much better about work and about your relationship with your peers at that time. However, the feelings that you’re sharing with me right now raise some concern, as I’m sure you could understand, and I think it’s best to send you home with pay while I check with my superiors in terms of how to best handle this. We’ll call it an “administrative leave” and continue to pay you as though you were working full-time. In the meantime, I’d recommend that you reconnect with your EAP counselor and follow up again. Would you agree to do that? [Yes.] Good. I’ll call you by the end of the day at home and let you know where things stand.

I’ve got to ask a favor, though. The way that our company normally handles these things is to ask the employee to go straight home. I can’t have the employee here at work while I do my objective fact-finding because their very presence could influence the investigation. Having the employee wait at home is always part of an administrative leave. Is that reasonable to you, and will you support my request for that? [Yes.] Great.

Gently escort the employee off the premises and alert security or take other reasonable steps to ensure your workers’ safety. Most employment lawyers will recommend that you share with the potential victims that a threat, whether overt or veiled, was indeed made as well as the steps the company is taking to address the situation. However, in order to protect the individual’s privacy and to avoid later claims of defamation, you should limit disclosure of specifics only to those individuals with a specific need to know.

Bring these newfound threats to the attention of the EAP or mental healthcare provider and let them know that the employee will be following up with them soon. At this point, be sure to seek the advice of qualified legal counsel before moving to termination. If you don’t have an answer in terms of the results of your investigation, call the employee at home by day’s end as you promised and let her know that the outcome is still pending.

If you then choose to dismiss, do so over the phone within twenty-four to forty-eight hours. Ship the employee’s personal belongings plus final checks via courier to her home. Include a letter that states that she may no longer enter company property for any reason without the advance approval of the vice president of human resources. Your attorney should approve the final draft of the letter.

Finally, even if the employee doesn’t elect COBRA to continue her benefits beyond the date of termination, look to make an exception by continuing her mental health benefits for a reasonable amount of time (say, ninety days to six months). This way, the employee will continue to have access to these crucial resources at a time when they’re needed most. Your company may need to assume the cost for the benefits extension, but that’s well worth your investment—both for the individual’s well-being as well as in terms of demonstrating your corporate responsibility to the impacted worker.

Scenario 100: Terminating Employees Who Are on Investigatory Leave

Whenever an employee makes direct or veiled threats of violence and you believe you have a legitimate cause for concern, placing that individual on an investigatory leave may make sense. First, you’ll want to remove the employee from company premises for safety’s sake. Second, you’ll want to conduct a thorough and impartial investigation, and the employee’s presence may compromise your objective fact-finding efforts.

The Solution

Your conversation with the employee at the time you place him on an investigatory leave must be calm and caring yet firm. For instance, in the example above, your discussion might sound like this:

John, we need to talk. Your comment about people knowing that they shouldn’t bother you or else…. Well, let’s just say that in today’s day and age of workplace violence, we have no choice but to interpret that very seriously. Tapping the bullet on the desk, which you admitted to doing, spooked a number of people, and rightfully so.

Therefore, I’m going to have to ask you to go home for the rest of the day. We’re considering this to be what we call an “investigatory leave” so that we could look into things on our end without you here to influence the outcome of the investigation. No worries about your pay: You’ll be paid for the rest of the day and until we’ve had a chance to complete the investigation on our end. You’ll simply continue to be paid as if you were working as normal.

However, I need to let you know, John, that depending on the outcome of the investigation, this may result in discipline, up to and including dismissal. I just want you to know that up front because, again, we’re taking this all very seriously. For now, it would be best if you left the building and waited at home for my call. I’ll plan on giving you a call by 4:00 this afternoon. Are you clear on what I’m telling you?

John’s response at that point may be, “Oh, Paul, I didn’t mean anything by that. I was just kidding. You know that. I wouldn’t ever threaten to hurt anyone. I just happened to have that shell in my shirt pocket, and I tapped it rather than a pencil without thinking.” Still, you may very well feel that his threatening behavior was unacceptable, especially in light of the record that’s been created:

1. Employee threatens that no one should bother him today.

2. Employee taps a live piece of ammunition on his desk when he makes that statement.

3. Employee later tells human resources that he was only joking.

4. Human resources allows employee to return to work.

5. Incident of workplace violence against coworker occurred at 5:00 P.M.

Of course it’s the possibility of that fifth point that concerns you.

In questioning the staff about John’s overall behavior or if any threats have been made before, you learn that John has indeed made similar threats to his coworkers. And they’re especially concerned because John is known for keep hunting rifles in the trunk of his car and goes shooting at a rifle range after work every night.

Assuming that you’ve vetted your findings either through your company’s HR department or through qualified legal counsel and agree that termination is appropriate, you would then call John at home and explain the following:

John, it’s Paul. Is it a good time to talk now? [Yes.] Okay, grab a pencil so that you can take some notes. We spoke with senior management about how to handle this, and it looks like we’ll need to part ways. I can’t say I disagree with their decision, John: In today’s day and age, any possible threats of workplace violence are taken so seriously because they have to be. Therefore, in our internal records, we’ll have to reflect this as a termination for cause. I want you to keep a few things in mind, though.

First, you’ll continue to be paid through tomorrow. We’ll draft your final checks for straight-time pay plus any accrued but unused vacation. We’ll courier the checks to your home by the end of the day tomorrow, and we’ll also include any personal belongings that are still at your desk.

We’ll have to deactivate your badge on our end, but I’ll ask you to mail it to me, along with your office keys and your Blackberry. Finally, John, for safety’s sake, I have to inform our security team that you aren’t to have further access to the campus without my specific approval. I know this is a lot of information, but I want to make sure that you’ve got it all. Is everything clear so far? [Yes.]

There’s one more thing: I can’t know if that threat was real or a passing joke, but John, please don’t do that at any other company where you work in the future. I’m afraid they’ll have no choice but to interpret it the way we’re doing so today, and obviously I wouldn’t want you to have to go through this again. Know how much we appreciate all your hard work over the past year and a half. And I’m sorry for this outcome. But again, I hope you could understand why this is a reasonable response on our part under the circumstances.

Special Note

Whenever you find yourself in a situation where your corporate attorney recommends terminating an employee while out on investigatory leave, be sure to take notes outlining your counsel’s advice. If possible, have your attorney e-mail you her recommendation so that you’ve got a written record before you take any action.

That’s important for two reasons: First, many employers who become “spooked” by employees making veiled threats of violence jump the gun too quickly and terminate without completing a thorough investigation. Second, you’ll want your written record to demonstrate that you (1) investigated the situation thoroughly and objectively and reached a reasonable conclusion in a timely manner and (2) relied on qualified counsel before initiating any action.

As such, your written record will help avoid or significantly minimize any potential claims for wrongful termination or mental disability discrimination that could be raised under the Americans with Disabilities Act. What courts and juries look for is that the company acted reasonably and responsibly, and you’ll clearly have met that standard by placing the individual on investigatory leave and then documenting your findings and legal conclusion before taking action.

In fact, you might want to keep a timeline in your notes of when the complaint was made, when the investigation took place, when the attorney was contacted, and when the employee was informed of the decision to terminate. Take notes of the employee’s response over the phone as well. Such a written record could serve as irrefutable evidence of your proper handling of this situation. More important, you’ll demonstrate your care and concern for providing a safe workplace for your employees.

Remember this: In the world of employment litigation, you can be sued by both sides. The terminated employee can sue you for wrongful termination and disability discrimination. And (heaven forbid) your employees or their survivors could sue you if that employee ever acted on any of those threats and injured or killed anyone.

The question you have to answer for yourself is, which lawsuit would you rather fight: The one from the threatening employee for wrongful termination, or the one from your employees who put you on notice that they were concerned for their safety in light of a coworker’s threats but were injured nevertheless because you failed to act on their complaints? Sometimes the world of people management becomes difficult to navigate. However, you’ll more than likely find that defending yourself from one employee who’s threatening a wrongful termination lawsuit is much easier to justify than a potential lawsuit based on workplace violence from your injured workers.

Scenario 101: Verbally Accepting an Employee’s Resignation

If you’re thinking, “This is an interesting conversation with which to end the book,” then you’re not alone. All of our other scenarios are concrete examples of challenging workplace situations that need to be verbally addressed to set the employee on a different course of action. Once they resign, though, then they’re done, right? I mean, you don’t have to literally do anything once you’ve gotten a verbal resignation, or do you?

Interestingly enough, this exact issue trips up many unsuspecting employers. When a problematic employee resigns, don’t start doing the jig in the hallway just yet. You’re not quite as “done” with him as you may think. First of all, ask for the resignation in writing. That helps people come to terms with the fact that they’re really leaving. More important, it will help you fight an unemployment claim should the ex-worker file and tell the nice folks at the unemployment office that he was laid off.

Second, what if the employee rescinds his resignation within the two-week notice period? Do you still have the right to say, “Sorry—you’re out!” or do you have to give him his job back? The short answer to this quagmire scenario is that it depends: You would think that you have every right to rely on the individual’s notice of resignation and end his employment on an agreed-upon date. The key legal question, however, becomes “How did you, the employer, act in reliance upon that notice?” If you did nothing—neither post the job nor begin interviewing candidates nor extend an offer to someone to replace this person—then your refusal to give the employee his job back could subject you to a wrongful termination charge.

The Solution

The lesson here is that whenever a problematic employee gives you two weeks’ notice, take immediate action to fill the position being vacated by posting it internally, running an advertisement, and reassigning work to other staff members. Think of it this way: If you do nothing, you could lose a lawsuit saying you had no right to prevent that individual from rescinding his resignation. On the other end of the spectrum, you could hire someone (or come as close as possible to it) in that two-week interval, and that would be the most foolproof way of avoiding any potential liability.

Here’s what your conversation might sound like:

David, I understand you’re resigning, and I accept your two-week notice. I’m glad that you’re excited about the new opportunity that’s awaiting you, so congratulations. We normally ask for resignations in writing: Would you be able to prepare a resignation letter for me? [No. I don’t like putting things like that in writing.]

Oh, that’s interesting. Well, okay. I’ll have to draft a short memo to you then saying that I accept your resignation, effective May 10, and that I wish you continued success in your career. Does that sound reasonable? [I guess.]

Also, I’d like your help with something. We’ll need to post the opening internally and advertise for it as well, and I’d like your help in updating your job description and helping me draft an advertisement. No one knows your position better than you do, and I’d like to discuss your suggestions tomorrow. [Sure, I can work on that.]

If it’s a particularly contentious relationship, then you may not want to ask the individual to involve himself in this process. However, under less extreme circumstances, asking the individual to do the legwork to prepare the written materials to find his replacement saves you time and gives you both a chance to work together on this final project.

Finally, I’m planning on reassigning some of your existing workload to other members of the team. I’m not sure how long it will take to find a replacement or when the position will be approved budget-wise, so I’d like your recommendations along those lines as well. Can we discuss that tomorrow too? [Sure.]

Okay, now I know what you’re thinking: If this hasn’t been an ideal hire, why am I being so nice to this individual once he’s given notice and, more important, involving him in finding his replacement? Well, there are a few practical reasons. First, it’s always better to “play nice” at the finish line. You have nothing to gain by being anything less than courteous, so do the right thing and let the last impression for both sides be positive. That allows David to walk out with his head held high, and when that’s the case, there is far less chance of lawsuits or defamation claims.

Second, allowing him to help in updating his job description, job posting, and workload reassignment makes him aware that you’re acting in reliance on his resignation. That means if he conveniently changes his mind a week from now (when he’s only one week into his two-week resignation period), you could respectfully let him know that the position has already been posted, candidates are lined up to come in and interview, and his peers are already handling part of his work.

That should be enough to convince him that he can’t have his job back just because he’s changed his mind about leaving. More important, it will protect you legally should he decide to pursue the matter with a plaintiff attorney. It’s just a smart and practical strategy and insurance plan any time you’re dealing with someone who gives notice.

Special Note

Of course, in many instances, you may choose to retain a well-performing employee who rescinds her resignation, but you have to be careful about setting an unwanted precedent: In the future, it could be argued that if you allowed one employee to rescind a resignation, then you’ll have to allow others to do so as well. Therefore, you shouldn’t develop an active practice of allowing such changes of heart at the eleventh hour.