HR Insights, Legal Issues

I’m Just In HR, So How Do I Counsel My Boss and Keep My Job?

HR at work

By Howard Mavity

Fran Sepler recently posted an insightful blog titled, I’m Sort of Sorry: Coaching the High Level Harasser, that discussed coaching a high-level performer regarding harassment, poor behavior or insensitivity.

Yes, it takes wisdom and experience to deal with an executive who controls valuable business or can fire you if your message is displeasing.

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.

The trick in confronting bad behavior

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? Does your culture in fact reinforce such behavior, or perhaps a lesser level of incivility?

This leads to the second question: “Who should confront the high performer?” 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.

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.” Make the “business case” for acceptable behavior and the concrete costs of bad behavior.

Who should counsel the high level professional?

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 in her blog post:

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

It’s really a judgment problem that needs to be addressed

Ms. Sepler then discusses the need to first make the HLP understand the harm they have done to others, and the need to get the high level professional to walk in that person’s shoes. Not just the harm to the business. That self awakening 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.

However, I do not 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.’”

Here’s the key: Don’t be timid!

Even if one successfully navigates the high level professional’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?” After 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 blog post. She provides quite a few practical guidelines which I have not discussed. My final 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 so vividly in Mad Men.

This was originally published on Fisher & Phillips’ Workplace Safety and Health Law Blog.

Howard Mavity is a senior partner in the Atlanta office of the law firm Fisher & Phillips. He co-chairs the firm's Workplace Safety and Catastrophe Management Practice Group, and has provided counsel for over 200 occasions of union activity, guided unionized companies. In addition, he has managed almost 400 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. Contact him at hmavity@laborlawyers.com .
  • Micheline Magnotta

    Great article. It reminds me of the many HR reps who call me at 3D Group asking for an external coach. I don’t envy their position, and they are smart to look for an outside coach who can take the heat, offer an objective viewpoint, and stick to their guns without feeling that their job is in jeopardy. We find that having assessment data (ex. 360 degree feedback) also helps, as it makes clear from multiple angles, that “Yes, this behavior is truly is a problem!” http://www.3dgroup.net