Case History 107
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[00:00:00] Liz: Welcome to the GBA case history series brought to you by the GBA podcast. My name is Elizabeth Brown and I am the principal geotechnical engineer at JLT Consultants.

[00:00:15] Abi: And I'm Abi Corbet, a project consultant at SME.

[00:00:19] So today we're discussing GBA case history 1 0 7, and that covers some issues with a member firm that went through some issues related to the Family and Medical Leave Act and the Americans with Disabilities Act.

[00:00:35] Liz: So let's start with maybe some background on this case, right? So we know what's going on here. So the GBA member firm, they hired an employee and we're gonna call her Denise, for the sake of this conversation. So Denise was hired as a part-time worker, and her primary responsibility was for electronic documentation and file [00:01:00] management.

[00:01:00] Abi: In her initial first six months, Denise's performance was rated as, I hope you feel, the air quotes here average to above average, and I feel like that's pretty good praise for someone so new. But two months later when she transitioned to a full-time role, they noticed that her performance and attendance just declined substantially. And when I was reading the case, they even mentioned three months of negative behaviors.

[00:01:31] Liz: Wow, that's kind of a long time there. Three months,

[00:01:34] What happened is, or what these negative behaviors were, was that. Denise was failing just to follow instructions and she would miss deadlines, and she had numerous unscheduled absences. Even on days when she was specifically scheduled to handle some critical tasks to support her department.

[00:01:58] She just wouldn't show up or just wouldn't [00:02:00] be there. Talk about a culture killer there, right? It's hard to build a good team if you can't really depend on your team members to be there when you need 'em to be there.

[00:02:11] Abi: Yeah, it's like that whole teamwork thing where the team's only as strong as its weakest player. If you don't have anyone showing up, the whole team suffers.

[00:02:20] Liz: Yeah, it's a tough situation to be in. It's tough to lead a group through that.

[00:02:26] Abi: Absolutely. So back to Denise, her supervisor actually started like holding counseling sessions almost with her, and as we would hope, it seemed like they were helping. But then you read a little bit further in the case and realize those improvements were short-lived. Each session she would have this improvement day and then like clockwork, a few days later, she's back to the problems. Her supervisor decided to do a little bit of oversight on her [00:03:00] work, and they actually found dozens of archive files labeled incorrectly, incomplete, literally stored in the wrong location. It makes me wonder if those counseling sessions were even getting to the heart of the issues.

[00:03:17] Liz: Yeah, and it's tough, right? 'cause you're not there to know exactly how those sessions were going. Ultimately it kind of goes back to, to be a good leader, you have to know your team, right? And so being able to have those counseling sessions be, what do I say? Be really meaningful and be able to get to the heart of the issue, right?

[00:03:39] They've gotta be able to connect, on some sort of level to, to really dive into, what really is the problem and what's happening, and really are those sessions explaining to Denise. Hey, when you do, whatever, mislabel a file, this is how it affects the rest of the team.[00:04:00] 

[00:04:00] Abi: Yes. I've found, especially recently, just understanding the why for anything helps me like figure out how to prioritize, figure out how important something is, and just it gives you that general sense of how to move forward. It's truly good leadership.

[00:04:20] Liz: And like you said, like knowing the why, right? And I think that comes down to which we've talked about in so many of these other case histories and in really just in life in general is how important that communication is, right? And not being afraid to ask questions if needed, both from Denise's standpoint and from the supervisor standpoint, right? Really having that open communication and being vulnerable and being able to ask, why, why is this happening?

[00:04:48] Abi: Yeah, and it's also one of those things, and I wonder if this was the case where maybe she started feeling that oversight. And so maybe the counseling sessions, she [00:05:00] was trying to be like a little bit more positive about things and kind of frame it so that it doesn't look quite so bad. And that'll hinder getting to the point too.

[00:05:10] Liz: Oh yes, I've, I've been guilty of that before. I can admit it. So as the story moves along, over the next few months, things really kind of started to get a bit more interesting. So during one of these counseling sessions, Denise casually mentioned experiencing some panic and anxiety attacks.

[00:05:32] So the way that it was brought up was so casual that the supervisor felt like, oh, no big deal. It's not a big issue. Plus, Denise never provided any formal notification about her ailments and her performance just kind of continued to deteriorate.

[00:05:51] Abi: That's a really tough one. It's like one of those things where you don't wanna dig in too hard When somebody casually mentions [00:06:00] something like you don't wanna get too personal, like drawing the line there. I could see her supervisor just completely thinking that's the right path. Like don't dig in on that because it's a personal problem, but.

[00:06:15] Liz: kind of like a fine line, right? Sorry? Like a fine line , when do you dig in versus when do you don't, and trying to put myself in, the supervisor's shoes? depending on how casually it was mentioned. I mean, hopefully I'm actively listening, but would I really pick up on the fact that, oh, like this could be a problem.

[00:06:37] This could be what's causing some of her her performance issues.

[00:06:43] Abi: Absolutely. And I feel like just in society in general we're getting more just more language for mental health. And I think sometimes panic and anxiety attacks get thrown around when they aren't like truly diagnosed. And as somebody who [00:07:00] truly does experience anxiety as well, I know kind of where the line is where I'm just feeling pressure versus I'm full on having an anxiety attack. But if you never feel that, it's really hard to know how serious it is.

[00:07:16] Liz: I think it's also hard to understand what that person's really feeling, or how debilitating perhaps, it could be for that person. if we could all just walk a mile in another person's shoes you'd have a better understanding of what that person's going through.

[00:07:34] But again, I'm gonna bring it back to the communication thing. Could there have been better communication on both Denise's part and her supervisor?

[00:07:43] Abi: Yes, and knowing how the story ends, that kind of shows how easy it is to miss a crucial detail with our conversations and per usual, hindsight's 2020, right? Yeah.

[00:07:54] Liz: Oh, absolutely. How many times? It's like, oh, if I would've only known that

[00:07:59] Abi: If I would've [00:08:00] had this experience 20 years ago.

[00:08:02] Liz: exactly.

[00:08:04] Abi: So things did get more serious when Denise ended up providing a transcript of an online medical consultation during one of those counseling sessions. She did mention her anxiety and the physician recommended some prescription drugs, but really didn't provide suggestions about work. Her supervisor said that they frequently asked if there was something that the firm could do to help, but Denise always responded, no. I personally like that the supervisor didn't just stop at the first no, and kept asking, but it also seems like the situation lasted way longer than a lot of companies would allow.

[00:08:45] Liz: Yeah, absolutely. And I think that. At this point when something was written that perhaps, should have been the trigger for the supervisor to maybe, take it a step further, right? Or maybe [00:09:00] escalate the situation to, to hr, right? To maybe to get some more advice from somebody that's more in that realm.

[00:09:09] Abi: Yes, absolutely. Someone who really understands like the repercussions of these kinds of things.

[00:09:15] Liz: Exactly. 'cause maybe there was something more that the company could do that maybe the supervisor didn't know. I've had situations where I've had employees maybe going through a hard time and just having, been trained from our hr. You know, knew about, Hey, here are some resources that the company offers.

[00:09:36] Hey, they're free of charge to you. Like maybe it was free counseling sessions or something. But being able as a supervisor knowing that, hey, the company had these items that I could offer to the employee, or even as a supervisor being comfortable to go to hr, and you don't have to disclose everything at the very beginning, right?

[00:09:58] You could be like, Hey, I have an [00:10:00] employee and this is what's going on. What would you recommend? And HR may have some direction to help you in the situation.

[00:10:07] Abi: Yes. And. That kind of hits back to how the supervisor was asking, like if you're just asking, do you need help or how can the firm help, that might be hard to answer, but if you, like you're saying, provide a resource and just say, Hey I know this might help. That's the resource in hand right away without the person in question having to think about ways to be better.

[00:10:34] Liz: Yeah. 'cause maybe they don't necessarily know what they need to make it better.

[00:10:39] Abi: Or even what an option could be.

[00:10:42] Liz: Yeah, that's true. So in this case, the CEO, actually, made a statement about that in the case history. So the CEO said A cornerstone of our firm's culture is to engage with our employees. Allow them to correct [00:11:00] performance problems and be understanding of life pressures outside of the office.

[00:11:06] Abi: And that totally makes sense why they would give a situation like this a little bit more time. And I really like that framework a lot. though in this case, despite that firm's compassionate culture, Denise's performance just kept declining. The supervisor even discovered that Denise started discarding documents instead of storing them per their procedures. And at that point, the issues just can't be ignored or set to the side any longer. So after another bout of absences, Denise got her written warning, which she did acknowledge, but her performance didn't end up improving.

[00:11:48] Liz: Yeah, it's a tough situation right there is to what? What do you do next? Because you wanna give your employees every chance and every opportunity, right? Like you don't wanna have that [00:12:00] regret of did I do everything I can to help them out?

[00:12:05] Abi: No doubt, and it just goes back to we're all human and we're not just gonna flip a switch and be perfect to the next day, but at what point do you decide, okay, it's been enough of the next day.

[00:12:18] Liz: Right. And yeah. Tough, tough decisions to make.

[00:12:22] Abi: Absolutely. And honestly in this case, things got worse.

[00:12:29] Liz: Oh, no.

[00:12:30] Abi: So ultimately, 20 days later, Denise got terminated and that's after 15 months with the firm. So we've hit this turning point. Four months after she was terminated, her attorney sent a demand letter alleging violations of the Family and Medical Leave Act and the Americans with Disabilities Act. When the firm's CEO obtained a labor lawyer, they were informed that [00:13:00] despite the supervisor's best intentions, he had made an error.

[00:13:05] Liz: Oh, all right. Well, that's a bummer, right?

[00:13:07] Abi: Yeah, big one.

[00:13:10] Liz: So according to the attorney. The firm was required but failed to inform Denise about her eligibility for FMLA and the ADA protections. So despite being aware of her condition, based on, those counseling sessions and some emails, Denise's lawyer offered to resolve the matter for a hundred thousand dollars without bringing in the equal Employment Opportunity Commission.

[00:13:39] But the firm's lawyer and CEO refused.

[00:13:45] Abi: I feel like that goes back to what we were talking about where if they just would've talked to her about her eligibilities on those protections. This isn't even a case history, you know?

[00:13:56] Liz: And I think something that can be learned here as well is [00:14:00] making sure that supervisors have some HR training. And that HR has provided them guidance, you know, and maybe like trainings. We all go through regular safety training in our profession, right?

[00:14:17] Having some HR training built into that so that supervisors are more aware of tools and resources and procedures that really should be taking place.

[00:14:29] Abi: I a hundred percent agree, and it's like you're not expecting a supervisor to be an full on HR professional, but they need to know just enough to bring in the professional when needed.

[00:14:44] Liz: Exactly.

[00:14:46] Abi: Okay, so the firm's lawyer and the CEO refuse. So we're moving on. The case goes to an EEOC mediation process where it's concluded that the firm did fail to [00:15:00] provide the required protections. Denise's casual mention of anxiety should have prompted the firm to notify her about her protections.

[00:15:11] Liz: The case was ultimately settled with the firm's employment liability insurance covering the settlement amount above the deductible, though many additional expenses were not reimbursed. So think about all of the billable hours that were lost, just preparing for the mediation, let alone the actual full day of mediation Attendance.

[00:15:37] Abi: That's crazy to think about. Especially it's not just those billable hours, because my guess is this was weighing on the supervisor's mind, and that probably pulls into your personal life too.

[00:15:50] Liz: Well, and it's not just the supervisor also that's gonna be involved at this point, right? You're gonna have your supervisor and your HR professional, and we know that, the CEO was at least [00:16:00] partially involved as well. So, there's multiple individuals that are now drug into the mediation to try and resolve this when, there, there perhaps are some, some lessons learned and things that could have been done differently.

[00:16:16] Abi: I think this is a great time to go into some of the lessons learned.

[00:16:20] Liz: Absolutely. Let's do it.

[00:16:22] Abi: So in my opinion, this case highlights that managers really need to get trained in those HR issues. I like to remember the phrase, employees don't leave firms. They leave supervisors.

[00:16:37] Liz: Exactly. I think just a little training in this situation really would've helped the supervisor to be better equipped to handle the situation that arose.

[00:16:49] Abi: Exactly, and that goes into my next point that engaging in HR personnel right away when there's a performance concern is huge.[00:17:00] 

[00:17:00] Liz: Oh, absolutely. The HR people are there to help, right? They want the employees to stay as well, and they understand that we're all human and make mistakes, and sometimes we need a little guidance and direction, and the HR people can help navigate that in a way that you don't end up in mediation or a lawsuit.

[00:17:20] Abi: Yes, and honestly, if. Even the supervisor mentioned to HR that they were starting to feel these performance issues like even before the counseling sessions. Then it's on hrs like mind and they can track things and make sure that the supervisor has what they need to help their employee.

[00:17:41] Liz: Right, exactly. And I think something of note here would be, as the performance issues continued to be a problem and they were continuing to have the counseling sessions of just giving HR a quick update, right? Like it doesn't necessarily have to be anything formal, but a quick email.

[00:17:59] Hey [00:18:00] hr, I met with Denise today and these are the things we talked about, right? Like just giving them a quick summary of what was happening. 'cause then it's at the top of hrs mind. So if they start to see something that perhaps is a red flag, they could then have that opportunity to provide some additional guidance to the supervisor.

[00:18:21] Abi: It literally goes back to just how important documentation is. We talk about it and it feels like every single case history, but documentation has to be accurate. It's gotta be complete, and it's gotta be consistent. Like if the supervisor just even documented an offer of an accommodation, the ruling probably could have gone different,

[00:18:45] Liz: Yeah, that's a good point.

[00:18:48] Abi: which leads to another one. Where you should explore some reasonable accommodations when you start hearing these things, even if they're mentioned casually. Accommodations don't [00:19:00] have to be a giant thing, and I think sometimes we forget that. It doesn't have to be moving to a completely separate office.

[00:19:07] It might just be like letting somebody wear headphones while they work, you know?

[00:19:12] Liz: Right, or in this case with something that I noticed was that her performance was completely fine when she was part-time and they started having issues when she went to full-time. Maybe making an accommodation of, hey maybe you're better suited for part-time work and not full-time work.

[00:19:27] Abi: Absolutely, and I wonder if, who knows how long ago this case history was written, but if like a remote option would've been really, really helpful here.

[00:19:37] Liz: Yeah, that's completely an option nowadays.

[00:19:42] Abi: Well, I feel like we've really hammered in those lessons learned, and hopefully the listeners can pull a little bit of something out of that.

[00:19:51] Liz: Yeah. And in this case, the firm definitely got a wake up call. Now, they provide ongoing training and resources to assist their [00:20:00] managers and supervisors in recognizing when FMLA and or ADA may apply. So now their supervisors, they can promptly contact HR for direction with employee attendance or performance issues.

[00:20:15] Abi: And that's literally what we've been talking about this whole time. If you just have that training and have a little bit of knowledge, when those red flags start popping up, I guess not even red, but yellow flags, things can be just way easier later down the road. So not only that, they've reinforced the need to document things and they're placing those documents into the employee's files. That way they can show outcomes of those counseling engagements, maybe even side conversations, and then they could connect them with other related interactions throughout the company.

[00:20:52] Liz: Yeah, and that's such a good idea, right? As we've talked about, documentation is key.[00:21:00] 

[00:21:00] So that wraps up our discussion on GBA case history 1 0 7. It's a compelling example of the complexities involved in managing performance while adhering to legal obligations under FMLA and ADA.

[00:21:16] Abi: Absolutely. It's crucial for both employers and employees to understand their rights and their responsibilities to ensure a fair and compliant workplace.

[00:21:26] Liz: Thanks for tuning in, and we hope you found today's episode informative. Until next time, stay informed and stay compliant.

[00:21:36] Abi: And that concludes this episode of Case History Series brought to you by the GBA podcast. I hope you were able to take away some useful information that will help you and others at your firm make good risk-based decisions in the future.