The scene

“I don’t know what else to say, except the obvious,” supervisor Arlene Franco said into the phone. “We’re going to have to let you go for violating your terms of employment here.”

“That can’t be,” Craig countered. “You’ve seen the note from my doctor saying I have strep throat and should stay out of work. Do you want me to come in and spread it to everybody?”

“That’s not the point, Craig,“ she explained. “We have a signed agreement from you that if you take any more time off this year – for any reason – you’re terminated, no ifs, ands or maybes.”

“Sure, I signed that because I’d get fired if I didn’t sign it,” he noted. “So I’m in a no-win situation. I’m gone if I don’t sign, and I’m gone if I sign. That’s not fair.”

“Let’s get the facts straight,” Arlene said. “We drew up that agreement after you’d taken way too many sick days, some without a doctor’s note.”

Not perfect
“OK, I know I haven’t been the perfect employee,” he admitted. “But c’mon, Arlene, it’s for real this time. I’m really sick.”

“I’m not arguing that,” she replied. “I’m just telling you we have a a signed agreement, and you’re violating it.”

Craig was fired and sued for wrongful discharge, noting that he had a contagious illness verified by a doctor. The company said a deal is a deal, and Craig defaulted on the agreement.

Did the company win?

Answer:

Yes, the company won. A judge said the agreement was fair and legal, and that the employee had willingly signed it.

The employee tried to argue the situation presented special circumstances – that a doctor had verified the illness and ordered Craig to stay out of work, meaning the employee had no choice but to take sick leave.

No dice, the judge said. The agreement said termination was for missed time for “any reason.”

Drawing up employment ‘contracts’
As part of an employee’s appraisal or personal-improvement program, some supervisors like to draw up a “contract” that gets the employee to commit to a level of performance or behavior: For example:

“You (the employee) agree to (perform or behave at a stated level). If you fail to (perform or behave at the stated level), the penalty will be _________ .”

Then you get the employee’s signature on the agreement.

Two bases to touch when writing one up:

Make sure the agreement fits your organization’s policies (and what’s been done with other employees), and

Be sure you don’t ask the employee to do something that’s illegal or unethical.

[Based on: Zwygart v. Board of Commissioners of Jefferson County, KS]

Question:
Our performance-appraisal system is based on “doesn’t meet,”  ”meets” or “exceeds” expectations criteria. We’re thinking of switching to a 1-10 scale that supervisors can use to rate employees.

Any thoughts on whether one system is better than the other?

Answer:
From the standpoint of being able to legally defend an appraisal, the doesn’t meet/meets/exceeds system is generally better. So says James Loots, a labor-relations attorney. But of course you have to have specific criteria on which to base the rating, meaning you have to define what productivity or quality criteria are used for each term.

The problem with a 1-10 scale is that one supervisor may give an employee a “5,” for instance, and another a “6″ but be unable to explain why or may be using shades of difference that depend on “feel” rather than measurable markers.

In that case, you could have a legal problem if the person with the lower score is a minority or pregnant or falls into some other bias-prone category.