Paul Falcone - Good ways for dealing with bad performance

Steve

Hello, this is Steve Hunt with People Performance Radio. Today we are very delighted to be talking to Paul Falcone, of Nickelodeon. He is the Vice President of Human Resources for Nickelodeon, and Paul has done a lot of work around performance management, written several books and I’ve seen him present at the Society of Human Resource Management National Conference, so he’s a fantastic presenter. So Paul, thank you so much for appearing on the show.

Paul

My pleasure, Steve.

Steve

So Paul, before we started the show, you were telling me a little about some of the work that you’ve done around performance management, and some of the books you have written. Can you talk a little bit about the work that you have done in this area?

Paul

Yes, my background, I started as a headhunter before I got into human resources, so one of the first books I’d written was called “96 Great Interview Questions to Ask Before You Hire”, which takes both the standpoint of being a headhunter who looks at the whole thing as a deal, where you have to know how to do this, you have to know where the deal points can break down, you have to get inside the candidate’s head. It is kind of taking that strategy but also looking at it from the human resources’ platform of understanding how to make these hirers work.

So that book was the first book that I’d written which had got me on the map, which was a lot of fun, and from there I moved more into an employee and labor-relations type of role, and at the time I had written a book called “101 Sample Write Ups for Documenting Employee Performance Problems: A Guide to Progressive Discipline and Termination”, and I looked at that, Steve, to do two things: number one, protect your company by making sure you have the right documentation in place because you have to remember that documentation could be used against the company if it’s done the wrong way, but more importantly for me was to turn people around. It’s not just giving them a ticket and telling them to fix it on it’s own, but it’s to show how the company reaches out to employees, to proactively rehabilitate them, to meet them half way, and in an essence, if a person doesn’t meet expectations after that kind of intervention, the person basically terminates themselves.

Steve

It’s interesting to find, so you started your career helping with making hirers, then moved into a part of your career that had to do with dealing with hirers that probably never should have been made.

Paul

That’s correct, you know it’s good because this way, if you make a mistake in the beginning you have to fix it, so it teaches you both ends of the scale.

Steve

Exactly, you get time to appreciate selection, I actually wrote a book on selection too so, we come with common backgrounds there. A question what I think, turning people around - what is your take on that as far as people who are experiencing performance problems? Do you think you can turn them around, and if so, how?

Paul

Yes, it’s a great question, and I don’t mean to do a plug, but I just finished writing a new book which will be out in April which is called, “101 Tough Conversations to Have With Employees”, it’s a manager’s guide to addressing performance conduct and discipline challenges, and it’s the same type of idea, this is almost like a verbal complement to the written book on “101 Sample Write Ups”, but the philosophy is still there.

I think what we have to understand as employers is that the right thing to do as a corporate citizen is to reach out to employees, have very very high standards, be very clear in our communication, but expect them to meet those standards because they are reasonable, and that basically if an employer really refuses to meet the standards because they can’t get over their anger, because they resent whatever kind of history they have had with the company, if they just can’t meet their performance tasks because they are not up to speed, then hopefully by treating them with respect and dignity, and having the right documentation on your side, people will bow out politely, and you know what? - even if it turns out that they don’t and there is still going to be a lawsuit, you are on very strong footing because you have done all the documentation, you have done all the right stuff, and I tell my managers when I do seminars, don’t manage by fear of lawsuit, listen, lawsuits happen, they’re a cost of doing business. It’s not so much that, my philosophy is, look, if I get sued, I want to get sued on my terms - that’s the key. What you don’t want to do as a company is get sued on the employee’s terms, because the plaintiff attorney will get advantage of the situation where there hasn’t been appropriate company intervention, company documentation so, again, it’s a win:win for everybody, it helps employees reinvent themselves, it welcomes them back into the fold, it helps them escalate their own expectations of themselves and their own performance, but the bottom line is you still hold all the cards, because if it doesn’t work, it basically sucks the life out of the process, or if you terminate yourself, you can defend your actions.

Steve

So you are basically saying, look, we set this employee up for success, so it is very clear that we gave him a platform where they could succeed, and then they didn’t follow through, so the accountability for the bad behavior is very clearly pointed, sort of who owned it.

Paul

Correct Steve, and the goal of the whole thing is to shift the responsibility, via the documentation, via the verbal intervention - shift the responsibility for improvement away from the company and back towards the employee, where it belongs. The funny thing is, it’s a little bit of a ‘David and Goliath’ when we go, if a company is sued and there are 12 jury members, you know 80% of that population is going to relate to the worker, not to the management or the company, but if it is a compelling argument that says, “Listen, we’ve done everything we could, we sent him to training on company time, at company expense, we met with him once a week for over a four week period to go over, to make sure he understood, how to do everything on his desk, we gave him the book, we purchased the book so that he would understand how to do his … but the reality, your Honor, is he didn’t read the book, he didn’t even do such and such and such, we had no choice but to terminate”. It shifts that responsibility, it shifts the paradigm, so people who would naturally be inclined to support the plaintiff in the case, the ex-worker, will sit there and say, “Well hey, what do you want the management to do, do his job for him?”. I mean, of course, the company is right so, that’s where this paradigm leads, it’s a win:win for everybody and, yes, it does turn around employees remarkably well, and the few that it doesn’t, then so be it, then you have to do what you do, but as a company you want to make sure that you can defend your actions, and that’s the key to the whole system.

Steve

I am going to follow on a little more on the legal conversation that I want to come back to in a minute on, can we actually change people, but continuing with that legal discussion, because I think that is, it’s so critical too I think in terms of, a lot of managers, when you look at these lawsuits the companies won, and you actually look at what the managers said to the employees, it’s like, “Well, no wonder they lost”. One of my friends who’s a VP of HR for a large organization said he once wrote a book called, “You Did What?” - horrifying tales of HR.

Paul

I would call it, “What Were You Thinking”, a one-on-one, you know, it’s the same type of thing. You wonder what was going on in their heads at the time they said something like that.

Steve

You know, you clearly weren’t thinking at all. So, I have a question here, one of the things that is hard about tracking the legal side of HR is that so many of these lawsuits never see the light of day, that is that they’re settled before they go to court and obviously the companies are not going to broadcast this. Where do you think is the greatest risk right now, in terms of litigation? Where are you seeing most of the action - is it hiring, is it performance management, is it promotion, is it pay? Where do you see the big concerns right now in that area?

Paul

Typically, you are going to see it on the performance side. I mean you don’t see many lawsuits relating to hiring - it can happen sometimes, wrongful failure to hire claims do exist out there. You’re not going to see many that say, “Oh, you should have promoted me, but you promoted John Doe instead, so therefore I am going to sue you”. You can theoretically, and that could be part of a discrimination claim, but the reality is, typically the claims come from terminations. If someone calls a plaintiff attorney and says, “Look, I think my boss is out to get me, and it’s really unfair and blah blah blah blah blah and what do I do?”, the plaintiff lawyers will typically tell them, “Well, document everything but the bottom line is until they fire you, I really can’t help you, until they actually take some adverse action against you by eliminating your job, for example, or demoting you, I really can’t do anything, there’s no damage”.

So a plaintiff attorney who works on contingency can’t really take that claim until it hits that level, but that’s really where you see the majority of your lawsuits, when a wrongful termination lawsuit comes up, they usually make it a triple cocktail. They turn it into a discrimination claim, they turn it into a harassment claim, because that’s where they can get their punitive damages on top of the wrongful termination claim. So that’s really the way the plaintiff attorney’s mind will typically work, and that’s where they will counsel their potential client to go, and I think that’s where you will find the majority of your post-termination litigation issues.

Steve

I love your triple cocktail analogy there. It sounds like it has a lethal hangover.

Paul

That’s good Steve, that’s very good – that’ll do it!

Steve

Yes, it’s like, I’d keep my day job, I suppose! So, I am curious, when you look at this potential risk of litigation, is it greater in certain jobs and certain industries than others, do you find? – hey, if I’m running a company, there is a bunch of bachelors, masters levels, engineers, do you have the same risks of litigation as somebody who is running a bunch of manual labor positions, or do you see it more occurring in some populations?

Paul

Well, the funny thing is yes, I am sure you do see it more in certain populations, and one of the big issues is which state you are in. I mean California tends to be a very liberal, employee-friendly state, which is where I have grown up in terms of my business career, although I am originally from New York, and New York is often generally a liberal, employee-friendly type of state. On the other hand, if you look at states like Texas, those are employer-friendly states, there are fewer employee rights, and the companies really seem to have the upper hand in terms of the way the legislation is structured, so one of it is a geographic issue.

The other issue is, I have worked in a hospital that does cancer research and biotech research, and, yes, it’s true, I think when you are dealing with the professional PHDs and MDs, and those types of people, you tend not to see these claims quite as much, but you still can see them, and when you see them they tend to have a lot sharper teeth, because with more of a light industrial type of workforce, or a younger workforce that may be not as educated, there may be more claims, or at least potential attempts to try and get lawyers to protect these people, because they think they are entitled to something, without understanding employment law, but at the same time, they often times don’t have teeth or merit, so it’s a wide brush and I think you will see them in both arenas, probably less in volume among the white collar, more in volume among the blue collar, but with certainly sharper teeth with the white collar cases than you will see with the blue collar cases at any time, it just depends.

Steve

Yes, well I guess your point is you are talking about larger salaries to begin with, and then they probably are more well thought through, so when they occur, they’e a bit more impactful. Now, you’ve talked a little bit about the absolute importance of documentation in terms of lessening the chance of lawsuits, what are the other things more procedural, because there is one once the lawsuit has been filed, what can you do that can protect you - what would you say is the key to just avoiding having an employee decide to file a lawsuit to begin with? What are the processes that create an organization that people just don’t want to sue?

Paul

Well, there is a few things: one of the ways is how you handle the termination meeting. One of the first jobs I had in human resources was as a corporate recruiter, but the person who I reported to, who headed this department, I told him I wanted to learn more about employer relations, and they say you learn more from the bad managers in your career than you do from the good ones, and it was very interesting, because this person, when people were vulnerable because they were being terminated, this individual kind of stomped on their heads, and it was very aggressive, it was very antagonistic, and her closing line was, “And by the way, if you are thinking of suing us, good luck because we have got the best outside counsel in Los Angeles”.

Steve

Oh my goodness!

Paul

Now, when you end a meeting like that, people are degraded, they’re vulnerable, they’re embarrassed, they’re humiliated, and you know what? - then they can’t sleep, then they’re up at three o’clock in the morning, and that’s when all those plaintiff lawyer commercials are on, saying “Hey, if you’ve been wrongfully terminated, call us”. So the lawsuit is a tool of workplace revenge, plain and simple, and if I think if you put people in that situation, to strip them of their dignity when they are at their most vulnerable, you can expect a lot of post-termination and litigation activity, that’s where it is going to come from, so number one, make sure at that meeting they are treated with respect, tell people, “You know what, thank you for everything you have done, I am sorry it has come to this, if it’s not a love connection, it’s not your fault, it’s just where your skills kind of focus versus what our company needs are right now, it’s really not where there is something that is a viable match, so we have to move in a separate direction”.

Listen, they’re still not going to like the answers, Steve, don’t get me wrong - but at least they can walk out with their head held high, so help people through that transition period, that’s so critical and that is a mistake that a lot of employers make, because they get nervous, it’s hard to tell that to people, so their body language curls up into a ball and they get overly aggressive, and that’s something that they really have to make it more peaceful.

Steve

It’s so amazing, so many of these instances come back to just treat people decently, it’s just show basic respect and the way you would want to be treated, that classic story, but I think you’re right that organizations lose sight of that, and I think when you get an organization to realize that when you put managers in this position of power, and they are under stress, if they have negative characteristics that are likely to come out pretty majorly, even if they don’t mean to.

Paul

Absolutely, what happens is the people get lost in the equation, and so there’s so much business and there’s so much stress on the business, and it’s almost like people lose, you lose focus on really what’s important. There is that golden rule that says, what you want for yourself, give to another, and if you want respect from your staff, you have got to give it, and if you want people to feel dedicated to you, you have got to give your time to them, and that’s not easy to do today, because everyone is working one and a half jobs and productivity for employees is through the roof and those are all good things, but the bad news is that people factor gets lost in it, so when one particular manager has so much stress and so much pressure that they end up pulling the plug on somebody without giving that person a chance of rehabilitating themselves, demonstrating that they can turn it around, then right away the company is at a loss, and then of course, what you have to remember is, when this thing goes before an arbitrator or a judge, somewhere between six and 18 months later, all that really matters is what’s written. If it’s not written down, it never happened, so if the company can’t sit back and say, “Listen, I know she was a nine-month employee, but we did give her a first written warning, and truthfully for someone under a year we only give usually one written warning, but we liked her, and we really wanted to help her through this, so we ended up giving her yet a second written warning, which was almost identical to the first, because she has a hard time controlling her temper, and she yells at too many people and we are coaching and counselling her, we’ve documented and verbal, times we’ve talked with her, and obviously, your Honor, we have these two documents that she’s signed, she did not rebut them, she did not provide her own performance improvement plan as we asked her to do. Basically, when that third issue happened around month number nine, we had no choice but to terminate”. Well that’s going to show you as a company to be a very reasonable employer. You did not just lose the person in the shuffle, because you were so busy doing your business, you really took the time out to show that you had verbal conversations, you had written documents, and when you moved to term, even though that person for example may be over 40 years old, may be a minority, may be disabled, may be pregnant, may be something that is protected by law in your particular state, there is still that feeling of “Well what else did you want the poor company to do, look at all this stuff, I mean basically either the boss had to do her job for her, or they had to terminate her and move to someone else”, and that’s why shifting that paradigm is so critical in your documentation process.

Steve

I think that one of the things you are hitting on to is this process of a couple of things that came out: one, in the modern world almost everybody is in some protected class so you can never say “no, there’s a person, we can do it if we want to because they are not in a protected group”; but the second thing, is just treating people right, and I think that key thing about spending time and the challenges that you need to both spend time with them, but also document how you spend that time, but don’t fire people by email, which has happened because that connection, but I think the last thing you keyed on that ties into a lot of the organizeational downsizing research is, think about how your actions are going to affect the people that are staying. You are probably firing someone who is a friend with people who work there, and even if they are incompetent and deserve to be fired, if you treat them the wrong way it is going to alienate the people that are left in your company too.

Paul

Correct, and everyone is going to look for the next opportunity to flee.

Steve

Yes, so I think there’s all sorts of benefits but as you come back, it’s being willing to spend the time on that.

I wanted to switch from talking about the legal risk side to the positive side of this which is, on one hand, if things go south and they get fired, you want to make sure it’s obviously critical that they have the documentation, the processes. On the flipside though, what have you seen that has worked in terms of, if a manager came to you and said, “I have this problem employee, I have got to start putting him on a performance improved plan, I think that if it doesn’t go right, they’re going to be out the door”. As somebody who’s obviously done a lot of this, what would you qualify saying, “Well, is this a person that we are going to be able to turn around, or is this a person that basically we are probably going to end up managing him out the door”? Are there certain things you can look for that tell you whether or not there is an employee that you think is capable of being turned around?

Paul

There is always a reason why people are acting the way they are acting, and managers don’t see that all the time, but there is one key word that I always tell them to use, and that word is perception. Perception has always worked for me, perception is never right or wrong, it just is, so for me to be able to coach a manager to say, “This is how you need to meet with that employee who is giving you those problems,” it’s to sit with them and say “John, let me share with you perception - now this isn’t necessarily reality, you have your reality, I have mine, but let me tell you what the perception looks like. From my vantage point, this is what I am hearing from your co-workers, from my vantage point this is what I am seeing, when I ask you to do something, this is what I get back and it’s late, there’s excuses, there’s mistakes, there’s blah blah blah blah blah, and truthfully at this point John, I have got to share with you, you’ve got a perception problem on your hands. Now, I am not throwing this at you to beat you up, and I am not telling you you’re absolutely wrong and I’m absolutely right. What I am saying is, I have the right as your supervisor to have a perception, to have an opinion as to what is actually going on, and what I would like to do truthfully is I’ve got to pierce your heart. My goal of meeting with you right now is to get you to assume responsibility for this problem, because if you assume responsibility, 90% of the time, people can fix it and I will never have to address it with them again. What I won’t do for you is avoid you, because I know that many managers, when they feel that angst building up inside, they cut a wide swathe around the employee and they don’t deal with them and then the employee starts to feel isolated and then they get angry, and then everyone is a foxholing. I said, I respect you too much to do that and I am not going to do that. What my job is, is to lay out the issues that I have, so that if you choose to fix them, you can fix them and I want you to know that I am here to support you through this, I want you to think about it tonight, there’s no rush, but let’s talk later this week and you tell me what you thought about whether you agreed that there could be a perception problem, whether or not you do assume responsibility for it, and if so, what I can do to help you through this” - and it’s that simple.

That’s what happens Steve, that kind of conversation will pierce the heart, they will sit back and say, “All right, best be good because he’s onto me, and number two, he is not being accusatory and telling me I am wrong for doing this, but he does have the right, it’s his perception, and oops, he is my supervisor, so maybe he doesn’t have all the facts”, and that’s when you start to see the level of business maturity that people have. This is not related to age, this is business maturity. Young kids have it, older employees sometimes don’t, some people can sit there and they are just not wrong, you are wrong, they are right, and period it’s never going to go any further than that, and when you see that happen, truthfully, that’s my red flag, that’s when I know “OK, the next move is going to have to be written, because this person won’t assume responsibility for the perception problem that exists”.

On the flip side, if I have someone who says, “You know, Paul, I didn’t think about those things, I’d never really had a manager tell that to me, listen, it was not an easy night of sleep, I didn’t sleep real well, but I did think about it, I did sleep on it, and you know what, I can see where you are coming from, and I will guarantee you that I will do my best to fix it”. Boom, and you’re done, so it depends on the level of business maturity, and that’s where you can tell, Steve, based on when they come back to you after they have slept on it, as to whether they agree with it and assume responsibility for fixing it, or whether they are like , “No, I’m not wrong here, you’re wrong”. If that’s where they’re coming from and they just can’t see it, then you have got business maturity issue on your hands and those are the things that rarely solve problems, those are the things where the employee is going to go and hit the rocks and crash.

Steve

Wow, that’s great actually, for our listeners what I recommend is that you record what Paul just said and whenever you have a problem employee, have your managers parrot that.

Paul

Well, thank you.

Steve

That was really, I mean you really did, I’m a psychologist in the background which really nails the full issue, is called ‘locus of control’, which is letting people know that the way you see the world, there’s a classic thing saying, ‘fundamental attribution error’ that, if I do something successful, I say it’s because I overcame all these challenges in my environment, but if I fail, I focus on all those challenges environment and say it’s the world around me that’s making me act this way that I focus on perception, and saying, “Look, you have to take some responsibility and realize that your perception is different from others and you need to think outside of yourself, in how you are being seen” and I like that idea of really trying to pierce the heart bit and to take ownership for it.

Well we are just about up with our time, Paul, but this has been just a fantastic conversation, I know I have learned a lot. Are there any other last things you’d like to share, maybe you could just mention the names of your books again because I think they sound like they have lots of valuable information in them as well.

Paul

Oh that’s nice, thank you, sure, yes the new one that is coming out in April of 09 is called, “101 Tough Conversations to Have With Employees – A Manager’s Guide to Performance Conduct and Discipline Challenges”, so a lot of obviously, these kinds of conversations would be in that book. The other book on the documentation piece is called, and it’s a sister book, it’s called “101 Sample Write Ups for Documenting Employee Performance Problems - A Guide To Progressive Discipline and Termination”, so yes, thank you for allowing me to do that, that’s very nice of you.

Steve

Well, thank you for sharing with our listeners, and again we are talking with Paul Falcone, who’s the Vice President of Human Resources for Nickelodeon and author of several books and Paul, I really enjoyed the conversation, and thank you again for appearing on People Performance Radio.

Paul

My pleasure Steve, thank you.

Speaker

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