4 Types Of Employees Nearly Every Company Has And What To Do About Them

Much of my day is dedicated to the hard questions of employment law. Discrimination claims. Worker classification issues. Wage claims. But some of the most interesting things that I do involve the most nuanced issues, and often just ever so slightly touch on employment law. And in this more gray area of employment law, I’ve identified four types of employees at the heart of a lot of the questions I get from HR, or from employees who have the misfortune of working with them.

I may be biased, but I think that employment law is by far the most interesting area of law, without being awful. It rarely veers into the criminal (though I did deal with a fair amount of worker theft issues this year). Rather, it is a fascinating look at human behavior. Here are some examples of typical employee behavior that I hear about from clients, and what to do.

The Office Romance

Occasionally, I will get what have become some of my most fascinating calls about an office employee, almost always a man, who feels it is his job to bring the love to his co-workers. If he is in an office of millennials, then things really get interesting, because apparently dating has died for millennials. Evidently these employees just hook up.

I had a client call once with an employee who had been “seeing” (sleeping with) at least seven of his co-workers. Unfortunately, the office was not that big and he had a reputation that must have been stellar because people continued to “see” him. I got to ask one of my favorite questions: “Was it consensual?” When the answer was yes, and I confirmed he wasn’t a supervisor, I said ignore it unless it involves a supervisor. When it did (a female supervisor), it was handled appropriately and that was that. He eventually left the company, but married one of the women he had been seeing. I don’t know if it was the first, the last, or someone in between.

So what does an employer do about a Mr. LoverLover? Nothing, unless he is a supervisor or he is dating his supervisor. I think anti-dating policies just encourage people to be secretive for no reason. People date at work.

This is particularly pertinent for this time of year as holiday parties are often when office romances become more apparent. Two consenting adults (even two married-to-other-people consenting adults) can do what they please. While if I am a manager and I see this, I would be worried about the divorce fall out that occurs at work, I would keep in mind that people are free to make bad choices, and that can happen even at work. If those bad choices impact performance at work and complying with policies, then enforce the policy as you would with any other employee.

The Office Revolutionary

Another fascinating call I get from time to time is the employee who seems to be “down for the people.” This employee is rarely a supervisor (I’ve seen that once in 10 years), but they are usually a fairly high-performing employee who is seeking to change the balance of power from the company and management to the little guy.

This employee challenges policies, and always wants to “confirm” that something is legal. And if the company tries to take away a perceived benefit, this employee wants to talk about the change with someone in HR, and likely their supervisor.

HR generally strongly dislikes this employee. But this employee isn’t all bad, because they aren’t actually likely to do anything. They are all talk, all bluster. At the end of the day, they are working to do what they think is best for their “team” but their poor use of legalese isn’t hurting anything. And they also tend to comply with policies. For example, this employee is rarely late.

So what does an employer do about an office revolutionary? Nothing. Yes, this employee will let you know she is unhappy with the leave policy change, but if she truly is that unhappy, she will leave. She can’t change it, and if anything, her keeping you on your toes means you actually did it right.

The Barely Keeping It Together Employee

I hear about him often, the employee who is one tardy away from the “up to and including termination” part of the discipline. The employee who has been on a performance improvement plan for two of the last three years. They are always at the bottom with their review. But they are otherwise “okay.”

They do, however, seem well-liked by their team, even if they do barely pull their weight. Often, away from management, this employee is critical of the company and their supervisor, and pokes fun at the team’s goal and the company as a whole.

So what is an employer to do about this employee? Well, it depends on whether this employee is bad at their job. The employee who can barely keep it together and who is a low level performer is often a drag on group morale, and is also a problem for uniform enforcement of policies. How an employer treats an employee for each policy issue creates a standard for the treatment of the next employee. An employee who can barely keep it together is like death by a thousand paper cuts for a policy manual, on mundane issues that can impact termination decisions long after the employee leaves. Terminate the employee if they show they cannot do their job, or are unwilling to do their job. But confirm that the problem isn’t something else. Confirm it isn’t an inept boss.

And if you have the misfortune of working with this person, and they truly are barely keeping it together, yes, they are why you have to work so hard. If your manager isn’t addressing the issue, you need a new job. But don’t cover for them at the detriment of your happiness. Say something, in private, to your manager, and encourage them to document. You don’t have to do two jobs at once.

The Inept Manager

Because of the Peter Principle, there are quite a few of these types of managers walking around. They are bad at what they do, and everyone knows it, but the company doesn’t know what to do with them, and they likely have someone higher up who promoted them and who likes them, ineptness and all.

I get a call about this person from both in-house counsel and HR, and the employees who work for them who are trying to figure out their options.  Usually its an employee trying to figure out their options that prompts the call by in-house counsel.

For the employer, you have one of two problems: you promote for the wrong reasons (just because someone is good at their job, that doesn’t mean they need to be promoted to a manager position), or you likely don’t train your managers in how to be good managers. For both issues, you need to call in an expert regarding identifying management talent and training that talent. Because of how common both of these issues are, a good employment lawyer can likely point you in the direction of a good expert to help you.

If you have the misfortune of working with a bad manager, unless you can go around them to their manager and get the managing you need from another manager, I recommend that you find a new job.

An inept manager is also a problem from a legal perspective, because they are more likely to miss things and to cause issues with employees that lead to charges and claims. I have had quite a few discrimination cases that I believe were because the managers either weren’t well trained, or weren’t good managers. They fail to properly document. They often say and do things to get their team to like them that are inappropriate. Or they don’t know how to address behavior that is problematic. For example, I had a case where a manager used racial slurs with his team because “everyone was doing it.” While I think he was right, none of that mattered because HE should not have been doing it. Needless to say, that case did not have a low settlement value.

All of these types of employees aren’t a problem until they are. But to avoid real issues, employers should confirm their policies comply with the law, keep an eye on office romance to the extent it involves supervisors, document the problems that employees have, and train managers well. Because at the end of the day, people will be who they are at work, and mostly that is okay. The goal is to encourage people to be their best selves at work.

---

Beth Robinson lives in Denver and is a business law attorney and employment law guru. She practices at Fortis Law Partners. You can reach her at [email protected] and follow her on Twitter at @HLSinDenver.