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Messy Separations and the Role of Performance Management in Avoiding Them

By Net Assets posted 09-04-2018 08:03 AM


Human Resources |

Excerpted and adapted from NBOA’s new book, Culture Meets Compliance: the NBOA Guide to Assessing Human Resources at Independent Schools.

Article by Grace H. Lee, NBOA, and Heather Broadwater, Potomac Law Group

From the July/August 2018 Net Assets magazine

It’s often the people that make one independent school stand apart from another. Performance management can improve employee engagement by creating an environment in which faculty and staff feel they can grow professionally, collaborate on ways to succeed, and be supported in their work. Employees who know what the school expects and where they stand are more likely to trust and respect their supervisors. Open communication that recognizes employee contributions and offers constructive guidance can also boost employee morale, overall performance and self-esteem.

Schools conducting self-assessments — even those that consider performance management a top priority — may be surprised at how little they have done to actively manage employee performance except in the most egregious cases. Competing demands on time and resources, many of which appear more directly related to priorities like safety and security, can divert attention from active performance management. Supervisors often shy away from formal performance evaluation processes, especially if they perceive them to be confrontational and uncomfortable.

Often-overlooked consequences of inadequate performance management can play out in employee separations. When an employee leaves — whether the school terminates their employment for performance or other reasons, or even if they leave on their own accord — the employee may bring a legal claim if they feel they have been treated unfairly. The claim could allege discrimination, harassment, a wage-and-hour issue, wrongful termination or breach of contract, among other complaints.

A school’s best defense against an employment termination claim is proper communication and documentation. Performance management generally includes several key components:

  • Onboarding
  • Establishing and communicating expectations
  • Goal-setting
  • Continuous coaching or informal performance feedback
  • Proactive counseling if expectations are not being met, along with an opportunity to improve
  • Performance evaluation
  • Separation, if necessary

Consider this hypothetical:

A school provides each teacher with one 90-minute planning period per week. One teacher regularly leaves campus during his planning period, eliciting complaints from other teachers. The department chair and dean of school approach the business officer to initiate the process for terminating the “absentee teacher.” Among other justifications, they explain that teachers are expected to be on campus during their planning periods in case they are needed to substitute for another teacher or briefly oversee a classroom in an emergency. Morale is suffering among other teachers. If this teacher doesn’t go, everyone else will revolt — or quit.

Upon review, the business officer finds that nowhere in the employee handbook, department procedures or employment contract does the school communicate an expectation that teachers will remain on campus during planning. The business officer further learns that this expectation is not communicated orally during orientation, department or division meetings, and suggests a meeting with the employee to ensure clarity regarding expectations.

In the meeting, the teacher expresses surprise at his poor standing and denies ever being told of an expectation to remain on campus. He also becomes defensive, asking the chair and dean if the planning period is why he has been, in his opinion, ostracized within the department. When the chair and dean acknowledge that this has been a source of significant frustration and resentment from others in the department, the teacher claims that there is a double-standard — that other teachers left campus during their planning periods, and he was being singled out only because he was a minority in a protected class.

Later, the chair and dean acknowledge to the business officer that other teachers in the department occasionally do leave campus during their planning period. They add, however, that their intent to terminate employment has nothing to do with protected categories, but with the fact that this is the only teacher who leaves campus regularly.

Clearly, proceeding with termination of the teacher in this hypothetical could expose the school to a variety of legal claims, ranging from breach of contract to employment discrimination. A complicated, counterproductive and possibly risk-filled situation could result from something as simple as failing to communicate the expectation for a 90-minute planning period.

Flexible Policies within Clear Expectations

Under most circumstances, it makes sense for a school to follow a very thorough process to help an employee improve performance and meet expectations before beginning termination procedures. Needless to say, certain situations may merit swift and decisive action. For example, an employee who has engaged in inappropriate sexual conduct with a student would be terminated immediately.

School policies should be flexible enough to allow schools to respond appropriately to a wide range of possible scenarios. Performance issues are best managed when the supervisor is properly trained and works in collaboration with human resources or the business officer responsible for human resources. But before taking any action to separate an employee, consider the following questions:

  • Did the school clearly communicate its expectations to the employee?
  • What policy or procedure did the employee violate? Is it published? Is it clear?
  • Can the school provide supporting evidence that it treats similar performance issues or policy violations in a consistent manner?
  • Has the school done anything to support a reasonable belief that it condones this behavior?
  • Has the employee been given a reasonable opportunity to correct the issue? Is there a record of the steps taken to correct the issue?
  • Has the school offered guidance and support to help the employee make improvements?
  • Has the employee offered mitigating circumstances to justify his/her actions?

Responding “yes” to each question is not required. However, working through an analysis before making a final decision can be valuable in pointing out potential areas of vulnerability. Of course, schools must also consider school culture when making these decisions. Separation decisions that are more complex — for example, an individual who has been accommodated for a disability — should be made in consultation with legal counsel.

A school’s management of employee separations can affect whether an employee leaves amicably or with such acrimony that he/she is inspired to explore potential legal claims. It can also be critical for safety and security reasons, potentially even influencing the possibility that a former employee might seek to physically harm a member of the school community. Schools with concerns about an employee’s reaction to an involuntary separation or about the potential actions of an employee who voluntarily separated may consider engaging, along with legal counsel, a threat assessment professional. 

Grace H. Lee and Heather Broadwater are the authors of NBOA’s new book, Culture Meets Compliance: the NBOA Guide to Assessing Human Resources at Independent Schools, published just last week (August 2018). Lee is NBOA’s vice president, legal affairs, and an independent school law attorney who has represented independent schools in various employment and related matters. Broadwater is a partner at Potomac Law Group, PLLC. She represents and advises independent schools throughout the country regarding employment, education and governance matters.

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