Our Advisors field a wide range of HR and Safety questions from our members each day on the HR Hotline and Advisor Chat in mozzo. In this special edition of our Tales from the HR Hotline series, we're taking real questions from employers on Reddit and asking our HR Advisors how they'd answer this question if it came through on Advisor Chat.
In this edition, our experts tackle how to help an employee who feels "unsafe" receiving feedback, what to do when an employee passes their FMLA period without returning, how to navigate a job candidate threatening an EEO compliant, and the path forward for an employee who is lacking in performance improvement.
Question #1: FMLA - employee return date has passed, contact/process for determining job abandonment (Oregon) [Original Post]
"Basically, an employee has been on FMLA and exhausted their 12 weeks. The return date has passed, what’s the best course of action (communication, documentation) to determine whether they will be using more leave, forfeiting their position or if we consider it job abandonment? Should all communication go through or HR or is it ok for a manager to reach out with a phone call to check in first?"
Additional info from comments:
"Return date was 2 days ago, HR has reached out via call/text/email and now I am considering calling as well, as I have oversight of their department. No word from them, just wondering how to not overstep or infringe on their rights while navigating potential job abandonment."
How Archbright Sr. HR Advisor, Kathy Iverson Responds:
You need to determine if they are intending to return or if they need additional time off and have any other leaves available (e.g. Paid Leave Oregon, leave under the ADA, etc.). Have HR reach out with a phone call. If the employee does not answer, follow-up with a letter, sent with proof of delivery, to their home address. That letter should ask if the employee intends to return to work, needs more time off, or if they are resigning from their position.
Give them a deadline for responding to you (at least 48 hours from when they will receive the letter). The letter should also state that if they do not hear from the employee by close of business on the deadline, they will assume the employee has chosen to voluntarily resign. If the employee responds, then you can arrange a return-to-work date or assess what other leaves (if any) may be available if the employee needs more time. Explore options through Paid Leave Oregon if that has not been exhausted or leave as accommodation under the ADA.
Question #2: Candidate was not selected, now they feel they were discriminated against and ready to file a EEO complaint. What do I do? (Washington) [Original Post]
"Howdy reddit, I'm in a pickle! I recently made the leap from a big corporate HR team to a small 5-person crew. Basically, I traded admin work or TA work to gain experience. Things have been going well until now. This is a learning experience, so any advice is greatly appreciated!
I had a strong candidate 2nd choice for the role who was not selected. The 1st choice was exemplary and was the right fit. Both candidates are of color and have similar education. The only difference one has specific experience within our industry while the other has a variety of experience in several industries.
Our 1st choice candidate has just accepted our offer, and I connected the remaining candidate who was not. They were very surprised by my notification and understandingly upset. They believed that they were best qualified for the position. Almost immediately I received another email from said candidate asking questions about then selected applicant and comparing his experience. I declined to share any information, and they responded with how they feel intentionally discriminated against. They now want an additional review and have casually mentioned that they will file with the EEO if I do not make this right.
The pickle? My boss is out of the country and there is no one higher to partner with. This is my first poor candidate experience without leadership. In the meantime, I have pulled a Recruitment data on this requisition. All four who did qualify are marginally similar in terms of gender, race, and educational standards. They are all external candidates as well. Professionally, what's my response or next step?"
How Archbright Sr. HR Advisor, Christine Asaff Responds:
Based on what you've described, it appears that one candidate was selected over another due to directly relevant industry experience. That is a legitimate, job-related selection criteria. Really, ask yourself one key question: Could your organization clearly and honestly say: "We selected Candidate A because they had directly relevant experience in our industry, which was a significant factor for this position."
If so, you were right to decline the rejected candidate’s request. A candidate's belief that they were the best candidate does not obligate your organization to justify the hiring decision. The relevant question is whether your organization had a legitimate, job-related, nondiscriminatory reason for selecting another candidate. The EEOC recognizes that employers may choose among qualified candidates, provided the decision is not based on a protected characteristic. Ultimately, the EEOC advises employers apply the same non-discriminatory standards to all applicants.
A good response would be:
Thank you for sharing your concerns. We understand that this outcome is disappointing.
The position was filled by another candidate whose qualifications and experience were determined to be the best fit for the organization's current business needs. Our hiring decision was based on job-related factors and was made following our standard selection process.We are unable to disclose information regarding another applicant or discuss their qualifications.We appreciate your interest in the opportunity and wish you success in your job search.
We recommend keeping documentation of this recruitment process. If a formal complaint or EEOC charge is filed, follow your organization's established process, and obtain legal counsel.
Question #3: Question about terminating an employee whose performance has dropped. (Washington) [Original Post]
"I am a manager and have an employee whose performance has dropped to the point that they need to be let go. They have been in an improvement plan since the end of January and have only accomplished 2 of five objectives they were given. I have 2 questions:
How Archbright Sr. HR Advisor, Kathy Iverson Responds:
The employee's performance can still be addressed; however, if their health is affecting their ability to perform, leave and/or accommodations may also need to be considered. I would meet with the employee and explain that they continue to fall short of the expectations outlined in the Performance Improvement Plan. Terminations should never come as a surprise, so if timelines and potential consequences have not been clearly communicated, that should happen now. For example: “We will re-evaluate in XX weeks, and if sufficient improvement is not demonstrated, it may be grounds for separation.”
If the employee has mentioned a family illness or their own medical condition, that should be included in the conversation. A helpful way to approach this is: “Here are the ongoing concerns. How can we support you?” If the employee indicates that a leave of absence is needed, you may need to offer that option. While this could delay a termination decision, it is the most employee-focused approach and presents the lowest risk to the organization. If leave is needed, you may have to press “pause” on the PIP and resume it when the employee returns. The PIP does not have to be discarded, only delayed. Once the employee returns, you can reassess the situation and remind them of the performance expectations.
Question #4: Employee said they feel unsafe and targeted, I asked if they want to go home. Is that retaliation? (Connecticut) [Original Post]
"I have an employee who is incredibly challenging and combative. Any time we give feedback, she gets defensive and has even given another manager the silent treatment because he gave her directions outside of what she had been doing.
Yesterday I told her that the way she handled an issue over the weekend was incorrect, and calmly told her next time she needed to do xyz steps. She told me not to get on her for something she messed up one time. I reiterated she was not in trouble, I was not mad at her, but instead was telling her how to properly handle an issue like this if it happens again. Specifically said “the one time we don’t do a step, that’s always where the problem is.” And even gave examples of my own mistakes adjacent to me skipping a similar step.
When I pivoted and asked her what she wanted to focus on learning, so she felt confident covering my leave coming up, she started to tell me she didn’t like how I flip flopped and needed me to teach her a specific way. (Teaching her has been so hard. She has outright refused to learn things, and then later asked me why it took so long to sit down and teach her said things). I asked for specific examples so I could understand what she was referring to. That’s when she started to say she felt unsafe and like she was being targeted.
I told her that I couldn’t do anything different without more information or examples, and she then told me that my tone was a problem. I held a calm and steady tone the entire time, it’s possible I sounded minorly frustrated. Otherwise, I was talking how I always talk. She also mentioned her vocational therapist and her personal therapist would be writing an ADA letter, and she wanted to wait until that came to discuss more.
I don’t think she actually has any valid examples of these claims; I think she was upset that I gave her feedback.
When she again said she didn’t feel safe, I asked if she wanted to go home to which she said felt like retaliation. I think that’s my biggest concern during the conversation. In my head, if you said you don’t feel safe being here, I want to offer you the option to go. I was in no way trying to punish her for expressing that she felt unsafe.
Ultimately it felt like she was trying to trap me into saying something, and she was using outlandish claims to shake me. She talks a lot about how she is suing other companies she’s worked for, so taking it a lot more serious than if she hadn’t done that. Would love any thoughts you have on this situation."
How Archbright Sr. HR Advisor, Christine Asaff Responds:
Oof! Assuming there is no bias or unequal treatment involved, the biggest concern here is how feedback appears to be received. There seems to be an ongoing pattern of defensiveness and resistance to feedback. And we’re all responsible for being “coachable” in our jobs.
Receiving feedback, working collaboratively with supervisors, communicating professionally, and accepting direction are expectations commonly outlined in job descriptions, performance standards, codes of conduct, and company values. If an employee is consistently unable or unwilling to engage constructively when coached, that behavior itself can become a legitimate performance or conduct issue.
We recommend this should be managed through the organization's normal performance and conduct processes. If these behaviors continue, we recommend considering a Performance Improvement Plan (PIP) focused on those specific concerns. As well as documenting the dates of coaching conversations and specific instances in manager notes so they can be referenced later if a PIP becomes necessary. It is also important to connect the documented behaviors to the employee's job responsibilities, code of conduct, company values, etc.
Any ADA-related concerns should be addressed separately through the organization's accommodation process. The organization should review the medical provider's recommended accommodations and determine whether they can be provided without creating an undue hardship.
Moving forward, we recommend documenting the conversation, continuing to address performance and conduct concerns through normal management processes, and handling any accommodation requests through the organization's ADA process. It may also be helpful to have HR or another management representative present during future coaching discussions. In all, documentation and future corrective action should remain focused on observable behaviors, and if concerns regarding coachability persist, a PIP may be appropriate in the future.
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