Simon | Paschal Says: Be Careful with Kindness

It’s that time again for another Simon | Paschal Says opinion column.  This opinion deals with kindness and the pitfalls employers face when they are too kind.  Before you fire off that angry email to us about how important kindness is, let us clarify what me mean by being careful with kindness.  First and foremost, we advocate an open and inclusive workplace that treats all employees with respect and treats all employees like important and valuable members of the workforce.  That is not the kindness we are talking about in this column.  The kindness you must avoid is the kindness meant to soften uncomfortable blows.

How many of you have had to terminate a nice employee who just couldn’t perform and in order to avoid a perceived insult to the employee or to avoid hurting the employee’s feelings, you merely indicated the employee “wasn’t the right fit” or that the company was “going in a different direction?”  How many of you allowed an employee that resigned on less than stellar terms to complete the employee’s two-week notice period or alternatively, terminated an employee and allowed the terminated employee to work a two-week notice period?  How many of you minimized an employee’s poor performance or over-emphasized an employee’s good performance during a performance review in order to avoid hurt feelings or because you felt the employee was trying hard?

We have seen far too often in our practice that this type of kindness ultimately ends up making things worse for employers.  In the first example, when presented with these reasons for termination, an employee often assumes that the proffered reasons are merely a cover for some more sinister or improper reason, namely discrimination.  If you haven’t operated perfectly, that suspicion combined with some digging and some added innuendo could end you up in a lawsuit.  While you might ultimately prevail, you will inevitably spend significant money to defend yourself and your decisions.  You are much better off being honest in your separation and outlining the real reason – even if that real reason is uncomfortable.

In the second example above, that type of kindness often results in a disgruntled employee within your workforce with access to your practices, your confidential information, and your trade secrets.  What might a disgruntled employee do with that information?  Even worse, now you have a disgruntled employee with several weeks to manufacture a retaliation case if need be.  While providing notice is a good and kind thing to do, there is something else you can do to can accomplish that kindness while also protecting your company – simply provide pay in lieu of notice.

In the final example, the problem created by the kindness is that you’ve made it more difficult to take action down the road based on poor performance.  If you try to terminate and allege poor performance but the previous performance reviews speak glowingly of the employee or minimize any faults by the employee, the alleged poor performance at termination appears disingenuous and false.  This could lead to claims against you.  You are much better off being frank and honest during the performance review.  You can utilize kindness by providing the employee avenues and resources to improve performance.

As the saying goes, “no good deed goes unpunished.”  Far too often we’ve assisted companies that thought they were doing a good deed and ended up in costly and unnecessary litigation.  Remember to implement the right type of kindness in your workplace!

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