March 2, 2021

Volume XI, Number 61


March 01, 2021

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When Counseling Jerk Employees – Focus on Jerk Behavior (and Stay Away from Why They Are Acting like Jerks)

Spoiler Alert: There are people in this world that are rude, inconsiderate, disruptive, conniving, manipulative, selfish and/or lazy. I could go on and on, but in short, there are many people that exhibit jerk-type behaviors. Consequently, there are employees with these behaviors also. So what should employers do when an employee exhibits the jerk-type behaviors that are not conducive to a productive, team-oriented work environment? Start corrective action? Direct the employee to the company’s employee support services (ESS)? Give your amateur assessment that the employee may suffer from a personality defect or other underlying medical condition and immediately terminate the employee because there is nothing that can be done? Just tolerate the bad behavior?

It might seem overly simple, but employers should use corrective action to address the unsatisfactory behavior. The key is to focus on the behavior, and be clear that the behavior will not be tolerated. For instance, the corrective action should spell out the specific behavior that the employer deems unsatisfactory. Below are some examples:

  • Employee yells at co-workers, creating an unpleasant and intimidating work environment;

  • Employee makes demeaning comments about co-workers and customers under his/her breath;

  • Employee often refuses to assist co-workers with projects that he/she feels are not part of his/her job duties, even though he/she is not busy;

  • Employee makes inappropriate comments about physical looks of co-workers and customers; and

  • Employee is repeatedly 15 minutes late returning from lunch, which places additional workload on co-workers.

Additionally (to the extent practical), employers should not inquire or question the employee as to why he/she is acting like a jerk. Stay away from diagnosing the employee and asking if the employee is depressed or anxious, or suffers from any other potential medical condition. Do not ask if the employee may need a leave of absence. There are no legal obligations to ask such questions, and by doing so an employer may unintentionally trigger legal obligations under the Family and Medical Leave Act (FMLA) or the Americans with Disabilities Act (ADA). The obligations may include engaging in the interactive process under the ADA or providing extended or intermittent leave. Failing to satisfy those legal obligations could subject the employer to potential liability. Lastly, asking such questions could increase the risk of a discrimination claim based on an actual or perceived disability if the employee is eventually terminated.

Admittedly, the above guidance may seem simplistic, or even harsh, especially if the employee involved has been employed for a long period of time and the unsatisfactory behavior is uncharacteristic. Wanting to inquire about why such an employee is now acting unsatisfactorily would certainly be understandable and may be well-intentioned. However, employers should understand that focusing strictly on the unsatisfactory behaviors is the approach with the least amount of risk of triggering potentially onerous obligations or litigation under the FMLA or the ADA or similar bases.

© 2020 Foley & Lardner LLPNational Law Review, Volume IX, Number 133



About this Author

Leonard V. Feigel, Employment Litigation Attorney, Foley Lardner Law Firm
Special Counsel

Leonard V. Feigel is an associate and litigation lawyer with Foley & Lardner LLP, where he advises employers in all aspects of employment law including litigation. Mr. Feigel has experience representing employers before state and federal courts and administrative agencies such as the Equal Employment Opportunity Commission, Occupational Safety and Health Administration (OSHA), Department of Labor and National Labor Relations Board. He has handled cases relating to the Fair Labor Standards Act (FLSA), state and federal employment discrimination laws, including Title...