“I have a toxic employee who loves to gossip”

Please note, this session is being simulcast on the AADOM Facebook Page, the AADOM LinkedIn Page, and the AADOM YouTube Channel to view on 5/14/24 at 1:00 pm Eastern.
 

“I have a toxic employee who loves to gossip” – You Asked, We Answered
Hello once again, AADOM tribe! Can you believe it’s already May? Summer is a busy time for all of us, but we hope you’re also able to soak up the sun and relax by some sort of body of water when you get the time!
HR issues never stop, and you proved it by submitting a ton of great questions this month. Keep them coming! We answer them here and cover a few over on the What the Hell Just Happened?! Podcast. Remember, any time you have an HR issue that either stumps you or want a different perspective on how to solve it, submit it here for Paul and his team of experts to help you each month during HR Tuesday.
If you’re new here, once a month, CEDR’s team of experts weigh in and answer three of the HR questions from your community on AADOM’s HR Tuesday article and live webcast. Be sure to tune in live or check the rebroadcast if you can’t make it. For this edition, CEDR’s Solution Center Manager Grace Godlasky will go into much more detail (with AADOM superstar Heather Colicchio), and answer questions submitted by the audience in the moment!
Always remember that your daily employee interactions likely involve state, federal, or local employment laws that you must consider when trying to find the best human way to solve the core problem. We will combine the two during our answers and help you devise some great resolutions.
Let’s turn it over to the HR Experts and get to those answers… Here are some of your best submissions this month:

“How can we practically and legally deal with toxic employees who ignore fellow teammates, gossip, and stir up drama at work?”
“How would you deny an employee call-out if they do call-out frequently and it becomes a problem? And they are texting the manager instead of calling them as required. Some employees are quite defensive on being approached about this topic, so trying to understand how this can be approached with using correct verbage.”
“We have a full-time employee who is currently on maternity leave. She would like to return to work part-time for a few months before converting back to full-time status. Unfortunately, we do not have the need for a part-time person in her position. She has not asked to do this – she has stated that is what’s going to happen – so there’s zero negotiation from her side. Ideally, we hoped she wouldn’t return to work as we have found the team operates better without her. That said, we don’t want to violate the FMLA, so we are OK with having her return to her full-time job. My interpretation of the FMLA is that we are well within our rights to only allow her to come back full-time. Is this true?”

Let’s Get to the Answers
Question: “How can we practically and legally deal with toxic employees who ignore fellow teammates, gossip, and stir up drama at work?”
The Legal Perspective: Dealing with toxic behavior in the workplace requires a level of understanding of employment law, specifically the National Labor Relations Act (NLRA), which protects employees’ rights to discuss work conditions. Employees are able to talk about their pay with each other and even complain to each other about work-related matters.
Because terms like “gossip” are very broad, employers have gotten into trouble for making general statements like “gossiping is not permitted.” The employee may take that to mean they can’t talk about who did or did not get a bonus that month, since that sounds like gossip. Yet, discussing a bonus program is something that employees are legally able to talk about.
This means you need to be careful not to do or say anything that suggests you are infringing on their rights.
Now for the Human Approach: The terms “toxic, “gossip,” and “drama” are all quite broad and don’t reference specific employee behavior. When you are having a problem with an employee, it’s critical to be able to objectively identify what the problem is.
Focus on factual statements, such as, “She is spending a lot of time complaining about her boyfriend when she’s supposed to be sending appointment reminders,” rather than, “She is gossiping and causing drama.”
From there, it can be more easily determined if this is behavior that you can address, or if the conversations happening are work-related and therefore potentially protected by the NLRA.
REMEMBER, HR TUESDAY DEPENDS ON THE AADOM TRIBE, ASKING GREAT HR-RELATED QUESTIONS! Submit your HR questions for CEDR to discuss on the next HR Tuesday LiveCast here!
Question: “How would you deny an employee call-out if they do call-out frequently and it becomes a problem? And they are texting the manager instead of calling them as required. Some employees are quite defensive on being approached about this topic, so trying to understand how this can be approached using correct verbiage.”
The Legal Perspective: Before taking action on these issues, be sure that your own policies are compliant with state and local law. If you are subject to any laws surrounding paid time off, such as a state-mandated sick leave law, there may be strict parameters you need to be abiding by in terms of notice for an absence, required documentation, and the option to deny the use of available paid time off.
The other body of law to consider is disability accommodation. If someone has a pattern of callouts that are or could be related to a medical need, including physical or mental disabilities as well as pregnancy, you may need to explore accommodations rather than discipline for unexcused absences.
Absent a sick leave law or disability accommodation requirement, you would be permitted to coach or discipline this person for attendance issues. Your employee handbook or attendance policy should be your first reference point. These policies should clearly outline the expectations for any applicable rules covered above, as well as reporting absences, including the method (call vs. text) and any documentation required.
If an employee is not following these procedures, you can address it as a policy violation separate from the issue of the frequency of their absences.
Consistency in how you handle these situations is key, both in terms of applying your policies and in how disciplinary actions are taken against any employee not adhering to the rules.
Now for the Human Approach: There are two different issues here – employees calling out frequently and employees not following your policies on how to communicate with you.
If an employee is calling out frequently, you can let them know that future callouts may be unexcused and lead to corrective coaching, especially if they have already exhausted all their time off benefits. Notably, this is different from forcing someone’s presence at work. Taking excessive time off is a problem, and as long as you consistently address that with any employee taking excessive time off, you can take corrective action with the employee, up to and including possible termination of employment.
Getting an idea of why the person is calling out can both help you spot the legal issues mentioned above, but it can also help you tailor the coaching to something that will be more effective for the employee. If the person is calling out for things that are foreseeable, such as a child’s school event, regular car maintenance, or travel, you’re going to tailor the conversation around better planning and communication.
On the other hand, if the person is calling out for multiple minor illnesses, your coaching for that issue is going to very different. In this case, you would focus on general attendance expectations and impact on your team and business.
Finally, if they aren’t following your call out procedures – address that in the moment. If they still get it wrong the next time, address it further.
Initiate a conversation with the employee to discuss the observed pattern of their absences and the non-compliance with the prescribed call-out procedure. Use the conversation as an opportunity to express the challenges their frequent and last-minute call-outs pose to the business, emphasizing the need for reliability and adherence to established policies.
However, approach the conversation without seeking to delve into the personal reasons behind their absences unless they offer that information. The goal is to discuss the impact of their actions and to encourage a commitment to improve.
Here’s a suggested script of what you could say:
“I’ve noticed you’ve had to miss several shifts recently, and often, these absences are communicated via text rather than a call as outlined in our policy. I understand that unexpected situations can arise, but consistent attendance is crucial for our team’s effectiveness and providing the best care to our patients. When you’re not here, especially with short notice, it puts a strain on our operations and your colleagues. I need you to re-commit to being here according to your schedule. Can we discuss how we can achieve this moving forward?”
Bonus content: What the Hell Just Happened?! episode 304: Point-Based Attendance Policies
Question: “We have a full-time employee who is currently on maternity leave. She would like to return to work part-time for a few months before converting back to full-time status. Unfortunately, we do not have the need for a part-time person in her position. She has not asked to do this – she has stated that is what’s going to happen – so there’s zero negotiation from her side. Ideally, we hoped she wouldn’t return to work as we have found the team operates better without her. That said, we don’t want to violate the FMLA, so we are OK with having her return to her full-time job. My interpretation of the FMLA is that we are well within our rights to only allow her to come back full-time. Is this true?”
The Legal Side of Things: Most leave laws, including the FMLA, require you to hold a ‘position of similar status and pay’ for the employee. What this basically means is that you need to give the employee their old job back, or as close to it as possible. What it does not mean is that the employee can demand a different position or create their own position upon return from leave.
That’s not the end of the story here, however. The key fact in this question is that the person is asking to return part-time “for a few months” (read: not forever). What this means is that a straight up denial because they’re asking for something that is different than their old job is likely not the best move.
In order to determine if there is another law or rule that would require you to entertain this part-time request, we need to dig into why the employee is asking for this part-time work.
There are two common answers for why an employee may wish to come back from a maternity leave part-time:

Scenario 1: The employee needs more time for a personal reason, such as childcare or personal preference.
Scenario 2: The employee has a medical need requiring them to work limited hours.

In scenario one, you really only need to consider whether you are subject to a law that would require ‘baby bonding’ or ‘family care’ time. The federal Family and Medical Leave Act (FMLA), which applies to employers with 50 or more employees, would require that sort of leave.
There are other states, such as California and Colorado, which require similar baby bonding leave time. If you are at a size, or in a location, where this type of leave is required, you would want to see how much this person is eligible for and facilitate intermittent leave (leave that is taken in smaller chunks, rather than in one long stretch).
In scenario two, you need to consider a much broader category of laws, including the Americans with Disabilities Act (ADA) and Pregnant Workers Fairness Act (PWFA), as well as state law equivalents in addition to state medical leave requirements.
Also, in scenario two, it is likely the employee’s part-time request can be facilitated as either intermittent leave from any remaining medical leave balance, or a medical accommodation.
What about that hope that she wouldn’t return? It is critical to proceed cautiously due to the timing of her leave. If you do not have documentation showing what the issues were, then discipline during or soon after a maternity leave can be viewed as discriminatory or retaliatory. Ensure that any employment decisions are grounded in documented performance issues.
Bonus content: What the Hell Just Happened?! episode 502: The Pregnant Worker’s Fairness Act.
The Human Approach: Addressing this situation requires a blend of empathy, open communication, and fairness. How you handle this scenario can significantly impact your practice’s culture and morale.
First, initiate a transparent and compassionate dialogue with your employee. Get her to share why she is making this request.
If it is for a personal need, and there is no legal requirement for you to extend more leave time to her, explain the operational constraints and the challenges of accommodating a part-time position if it doesn’t align with the practice’s needs. Be open to discussing her ideas and concerns and strive to find a mutually beneficial solution.
If her request cannot be accommodated due to the absence of a part-time role, clarify the reasons while expressing your willingness to welcome her back in her full-time capacity. Ensure she understands that the decision is based on operational needs, not personal factors.
If it is for a medical need, you would proceed with administration of a leave or accommodation just as you would with any other team member.
Finally, it’s essential to consider the broader message your actions send to the rest of your team. Demonstrating flexibility and support for employees during significant life events can bolster morale, loyalty, and the overall workplace culture. Conversely, making assumptions about the employee’s situation or appearing to be uncollaborative can lead to a perception of unfairness and negatively affect team cohesion.
HAVE A QUESTION FOR CEDR? Submit your HR questions for CEDR to discuss on the next HR Tuesday LiveCast here!

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