Dealing With Bad Behavior By The Top Dogs

Fran Sepler recently posted an insightful blog, “I’m Sort of Sorry: Coaching the High Level Harasser” discussing coaching a high-level performer regarding harassment, poor behavior or insensitivity.  It takes wisdom and experience to deal with an executive who can fire you if your message is displeasing or who controls valuable business.

Often, the main problem is that the high performer’s bad behavior has long been tolerated because he or she is a high performer.  Odds are that the employer has looked the other way for some time when the high performer behaved in a churlish or unprofessional fashion because he or she is a “high performer.”  Lesson one is actually a question . . . when do you confront bad behavior that has not “yet” risen to the level of “harassment” but is inappropriate when viewed by any objective observer?  You already know what I’ll say next from my lawyerly ivory tower, “why have you allowed this behavior to go so far?”  Could you have dealt with these challenges in a “positive” fashion if you had stepped up earlier?  Probably.  What if the person is the top executive in the organization and you are an HR executive or subordinate?  How do you tee up the issue?  With scrutiny so high on public and private entities the person has to be addressed and both strategy and bravery may be required.

This leads to the second question, “who should confront the high performer?  Respect and preserving  “face” are critical.  You may need a  mentor, higher up executive, or someone who can quite lessen the blow and initially recognize their exalted status.  The operative word is “initially.”  If real legal exposure is presented, you may need to involve counsel in the meeting, both to show respect and to impart the fear of God.  Some of us are pretty good at focusing the discussion on the risk presented, and therefore the urgency.  Another plus to using outside counsel is that if the high performer reacts badly, he may only focus on the counsel, which is kind of hazardous for us.

The third question is who should counsel and work with the employee after the initial confrontation.  There are fine Industrial Psychologists and Trainers available, and many of them can try to sort through causes of bad behavior and work with the employee to overcome self limiting behavior.  Be prepared for a response from many high performers that they don’t need some @!$% shrink or impractical “PC” trainer.  Look for the person who can be tough and practical.  Express agreement that the organization needs a practical person who knows what the real work world is like.  Explain that this person focuses on helping high performers succeed.  But don’t back down.

The final question is how to approach the counseling and coaching.  I like Ms. Sepler’s comment:

These HLP’s generally aren’t sorry.  They are practical.  They want to know what they need to do to get past this speed bump.

Ms. Sepler then discusses the need to make the HLP understand the harm they have done to others, and the need to get the HLP to walk in that person’s shoes.  That outcome would be great; however, one may have to be satisfied with making the HLP recognize what a stupid thing they have done and how it may cost them money . . . their money.

I don’t actually disagree with Fran’s goal.  We must try to get these individuals to recognize the inappropriateness of their behavior.  We do not want counseling and retraining to depend upon a list of “what not to do’s.”  We want the employee to learn how to be “professional” and to show good judgment in all areas.  However, as Fran indicates, a first step is to provide “concrete” examples of unacceptable behavior.  I like her suggestion that “we generate a list of things that constitute ‘bad habits.’”

Even if one successfully navigates the HLP’s current debacle, if not addressed, their lack of judgment will inevitably lead to further and even worse problems.  From a utilitarian analysis, the question is when will the employer determine that this bad judgment outweighs the value of this high performer’s “production.”  Almost 30 years of cleaning up problems, I am convinced that bad judgment in one area will eventually affect one’s professional activities.

Read Ms. Sepler’s post.  She provides quite a few practical guidelines. My contribution is a recommendation that employers not be timid, and instead start addressing high performers’ behavior problems before these issues rise to the level of a legal challenge.  As in “selling” diversity and safety, we have to make the business case for professional behavior.  It’s not just that times have changed; a lot of that behavior was unacceptable even during the era portrayed in “Madmen.”


About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
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