By | September 14th, 2018 | General » Leave a comment

Author: Trey Box, Of Counsel – Employers Legal Resource Center
(405) 702-9797

We all partake in difficult conversations throughout our lives.   These conversations vary infinitely in nature and purpose – from simple matters of preference to complex matters of life and death.  Sometimes we are the leaders of such conversations, and other times, we are the receivers.  Regardless of which side of the conversation we sit, the difficulty of a given conversation is defined by our unique and individual perceptions.

In the workplace, employee performance conversations provide yet a heightened degree of complexity given the stakes that may be involved. Inevitably, effective managers will “lead” their fair share of these difficult conversations.  Proper preparation and execution by a manager faced with this task may be the difference between a successful or unsuccessful (or even worse) outcome resulting from the conversation.


BE PROACTIVE.  The foundation for whether a given difficult performance conversation between you and one of your employees will be productive may very well be set far in advance of either one of you knowing that such a conversation looms on the horizon.  Diligently (and authentically) collect trust as early and often as possible with your employees during the employment relationship, so if and when the time comes for a difficult conversation, the challenging conversation will have the support of a solid foundation to work from.

Additionally, waiting for an issue to boil over with one of your employees before you are finally forced into having to have a difficult conversation with that employee is not an effective strategy for providing your employee the best opportunity for personal accountability and self-growth nor for minimizing potential risks and liabilities to the organization you serve (see my earlier article “Managers…Please Do Not Forget To Harvest The ‘Low-Hanging Fruit’”). Be a proactive issue spotter when it comes to employee performance with the intention of providing contemporaneous remedial coaching on an ongoing basis (I refer to this as “managing in real time”).

BE NICE.  There is nothing to be productively gained by being anything but nice (i.e., respectful and courteous – professional) during difficult conversations of this nature.  A wise manager understands the importance of always modeling what he/she expects his/her employees to emulate – even during difficult conversations.

BE PREPARED.  Don’t make an already difficult conversation even more challenging for a lack of planning.  The ability to think on your feet when faced with uncertainty and unpredictability is important; however, having a plan for getting back on track and effectively completing the task at hand is essential.  Understand the facts, observations, concerns, issues and have applicable resources (references, policies and procedures, contacts, forms, supporting documentation, backup personnel, etc.) readily available during the conversation.  Anticipate and plan for unexpected detours the best that you can – including the possibility for inappropriate reactions by the employee and/or the employee’s immediate resignation.

BE APPROPRIATELY CONFIDENT. There is no room for arrogance during such conversations, but you must offer your employee a sense of confidence in your position regarding the concerns being addressed.

BE FOCUSED. Conversations of this nature demand your utmost attention and presence. Speak with purpose and listen intently.  Be in the moment without unnecessary distractions (e.g., incoming phone calls, text message or email alerts, visitors, tight schedule, excessive note taking – have a witness attend if necessary, etc.).  Follow your plan.  If your employee attempts to deflect from the issue(s) at hand, reiterate the specific purpose and importance of the conversation (no matter how many times you have to repeat yourself) then offer to possibly discuss unrelated concerns at another time.  Now is not the time to be tempted to explore rabbit holes.  Again, follow your plan.

BE ENGAGED.  Be sincerely vested in the success of your employee as demonstrated by your commitment to the desired result of the performance conversation.  Appropriately placed empathy (not to be confused with sympathy or being apologetic) can be a powerful means of successfully connecting with your employee.  Bottom line – to be a successful manager, in good times and bad, know your employees!  Here is an applicable worthy read for managers:  Marcus, B. (2005, March).  What Great Managers Do. Harvard Business Review.  Retrieved from

© Box Law Practice, PLLC, 2018.  All rights reserved.

***DISCLAIMER*** This article (“Publication”) is made available for general informational / educational purposes only and not to provide specific legal advice. The Publication should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. By accessing the Publication, you understand that there is no attorney client relationship between you and the attorney author or any law firm he may be associated with.

#employeerelations #employeeperformance #employeediscipline #workplaceissues #managingpeople #difficultconversations

College Internship Programs Under FLSA

By | September 13th, 2018 | News » Leave a comment

The college summer internship courting ritual between industry and students is already underway again at many of our colleges for the 2018-2019 academic year. Career fairs and resulting college internships can play a critical part in a student’s academic and early career experiences. The Department of Labor provides some important information for employers regarding how such programs are regulated by the Fair Labor Standards Act:

If you need any assistance with developing a compliant internship program for your organization, please contact Employers Legal Resource Center at 405.702.9797 – our attorneys are ready to assist you!

Christine Cave Presented at the 2018 NHRMA 80th Annual Conference!

By | September 12th, 2018 | News » Leave a comment

Last week, attorney Christine Cave & Max Dubroff discussed workplace internal investigations at Northwest Human Resource Management Association (NHRMA)’s 80th Annual Conference held in Tacoma, Washington. 150 HR professionals from Alaska, Washington, and Oregon attended the session. The presentation provides HR professionals useful and practical information for completing internal investigations in the workplace as illustrated through their book, “Workplace Internal Investigations: A Novel Approach.” Employers needing assistance on internal investigations should contact the attorneys at Employers Legal Resource Center at 405.702.9797. To purchase a copy of the book today, please follow the link below!

EEOC TAPS Rapid Fire Q&A with Christine Cave, ESQ

By | September 4th, 2018 | News » Leave a comment

On Thursday, August 30, 2018, Christine Cave participated in EEOC’s, annual one-day Technical Assistance Program Seminar (TAPS) in Norman for a rapid fire Q&A session to answer common queries from private employers over best practices for participating in internal and external investigations. Contact our office for more information about internal and external investigations or to learn more about EEOC’s annual training event, visit

Managers…Please Do Not Forget To Harvest The “Low-Hanging Fruit”

By | August 30th, 2018 | General » Leave a comment

Author:  Trey Box, Of Counsel – Employers Legal Resource Center
(405) 702-9797

Over the years, I have frequently referred managers to the often-cited “low-hanging fruit” cliché when dealing with ongoing employee performance and conduct issues. Merriam-Webster defines “low-hanging fruit” as “the obvious or easy things that can be most readily done or dealt with in achieving success or making progress toward an objective.” “Low-hanging Fruit.” Merriam-Webster, n.d. Web. 24 Aug. 2018. It may seem like a counter-intuitive, or perhaps even a lackadaisical, approach to advising managers how to effectively accomplish what is arguably one of the most challenging and complex responsibilities of their jobs by encouraging them to simply focus on the “obvious” and “easy” stuff. However, imagine if managers only focused on trying to identify and address the obscure and difficult to prove performance and conduct issues while forsaking the blatantly obvious ones. At best, employee performance and conduct management efforts would be highly inefficient, and at worse, disastrous (e.g., productivity, culture – employee morale, legal exposure).

Even for the most seasoned managers, confronting employees on performance and conduct issues can be very difficult and unpleasant. Given human nature, it is not surprising that some managers may actively avoid the conflicts associated with managing performance and conduct issues until they have no other choice but to react. By that time, unfortunately, such concerns have most likely grown in complexity making them much more challenging for the organization to address. This results in management being backed into the proverbial corner, which inevitably forces managers (and human resources) to address more challenging issues than would have otherwise been present had the underlying performance and conduct concerns been addressed in a timelier manner. A common example may go something like this:

Employee A and Employee B are team members, and they have ongoing issues related to getting along with each other at work. Both employees regularly complain to their common manager that one or the other has done “X, Y, or Z” at the displeasure of the other. Manager attempts to informally collect information regarding the concerns, but she is usually faced with an inconclusive result given self-interested explanations from each party and no other willing witnesses to confirm or deny the allegations (the dreaded “he said, she said” employee relations dilemma).  Employee A regularly abuses the organization’s time and attendance policy (e.g., excessive tardiness and failure to follow established call-in procedures for unexpected absences).  Employee B regularly misses clearly communicated and quantifiable production deadlines.  Manager has yet to confront either employee on these conduct and performance concerns.  This cycle has gone on for the past 9 months.  Employee B misses another production deadline, but when confronted by the manager, Employee B insists that Employee A’s excessive absences have contributed to the missed deadline.  Employee A and Employee B are once again at odds with one another, and the manager begins receiving complaints from other team members regarding the destructive impact Employee A’s and B’s strained relationship is having on the team’s morale and overall productivity.  Recently, Employee A submitted an FMLA request for some intermittent time off to deal with a chronic medical condition, and yesterday, Employee B filed an injury report after moving some office files to storage resulting in a back injury.  The manager has had enough, so she finally decides to involve human resources regarding the ongoing concerns and requests immediate termination approval for both employees based on their inability to work professionally together.

If you have managed people or been in human resources for any length of time, I suspect this example resonates with you. This is what we HR professionals refer to as a teachable moment for the manager.

In such circumstances, I have found that analogizing the task of managing employee performance and conduct to that of harvesting fruit from an apple tree serves as a simple but very effective means of helping managers work through challenging employee relations issues more effectively. The key, consistent with the definition of “low-hanging fruit” provided above, is to clearly identify, understand and respect the organization’s objective related to employee performance and conduct management.

From the example above, let’s assume that the organization’s process for addressing employee performance and conduct management is to (1) consistently identify and address all performance and conduct issues as quickly and efficiently as possible; (2) communicate related organizational performance and conduct expectations, (3) retrain, if appropriate, and (4) collect sufficient documentation to substantiate timely terminating the employment relationships for those employees who fail to be rehabilitated or for those employees that rehabilitation is not appropriate. This process is designed to promote the organization’s “objective” of ensuring a positive and professional work environment that promotes growth, productivity and success through consistent management practices and individual employee accountability to the same.

Applying the analogy, the specific negative performance or conduct violation is the “fruit” (here, the apples). The task of managing employee performance and conduct is the act of harvesting high-quality and fresh apples to promote the organization’s objective. Whether an employee’s employment relationship is terminated is a function of how many apples the manager has collected in the basket for a given employee’s performance or conduct concern compared to the number of apples required per organizational policy or practice to terminate the employee for that same concern.

The quality of each apple in a given tree can vary, and an apple’s placement in the tree is critical to the analysis under this analogy. The apples lower in the tree are more observable, quantifiable, and tangible from the ground than the apples higher in the tree. Furthermore, apples closer to the ground are more likely connected to sturdier supporting limbs should climbing into the tree be necessary to harvest, whereas, the apples higher up may only have the support of smaller and immature branches. As such, mangers are safer, overall risks are less, and production efficiency provides greater returns when working at the lower levels of the tree. From the ground, an assessment whether to climb the tree and harvest the higher apples may require speculation based on more subjective measures than their lower counterparts (e.g., are the branches strong enough to support our weight, is the apple of such quality worth risking injury during the climb, etc.). Ultimately, the manager’s goal is to harvest as many high-quality and fresh apples as necessary to effectively ensure the organization’s objective while minimizing unnecessary risks to the organization. Therefore, managers should spend as much time as close to ground level as possible when managing employee performance and conduct issues.

To be clear, I am not suggesting that managers should turn a blind eye to complex issues that may only reside at the top of the “fruit” tree. Sometimes the only viable “fruit” available for harvest is that which grows near the top of the tree – and while harvesting it may be fraught with risk and potential peril, the organization must harvest it nevertheless to accomplish its objective. In the above example, however, the manager unfortunately put the organization in the unenviable position of having to rely on harvesting the “fruit” at the tree’s highest levels in order to accomplish the organization’s objective when viable “fruit” had been plentiful at a much safer height in the tree at earlier stages of the growing season (i.e., the objectively measured performance and conduct violations). While the lower “fruit” in the example may still be applicable to pursuing the organization’s ultimate objective, it may no longer have the requisite quality and freshness to be useful under the present circumstances.

When the bounty is plentiful from the ground-level, properly trained and wise managers understand the importance of harvesting that which is “obvious” and “easy” in preparation for leaner and more complicated harvests. Such may be the case for an employer faced with an employee’s legal allegations of discrimination resulting from an adverse employment action taken by the employer. Ultimately, that employer may be required to demonstrate that it had a legitimate, nondiscriminatory reason for the action in its defense – the timely collection and proper storage of “fruit” from the lower levels of the tree may prove to be invaluable under such circumstances.

© Box Law Practice, PLLC, 2018. All rights reserved.

***DISCLAIMER*** This article and related infographic (“Publications”) are made available for general informational / educational purposes only and not to provide specific legal advice. The Publications should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. By accessing the Publications, you understand that there is no attorney client relationship between you and the attorney author or any law firm he may be associated with.


By | August 21st, 2018 | News » Leave a comment

Employers Legal Resource Center is very pleased to announce the addition of Trey Box to the firm! Trey brings years of HR leadership & employment experience to the firm and is the go-to guy for leadership development, consultation on best-practices (especially on employee performance and conduct management), and employee relations/dispute resolution!  If you’ve been looking for an attorney who “gets it”, Trey is your guy.

You may contact Trey at Employers Legal Resource Center by calling (405) 702-9797.

Have a Safe and Enjoyable Independence Day!

By | July 3rd, 2018 | News » Leave a comment

Employers Legal Resource Center will be closed to observe the Fourth of July holiday on Wednesday. We will re-open and resume normal operating hours on Thursday, July 5th.

Christine Cave Discusses Reasonable Accommodation in Tulsa!

By | January 15th, 2018 | News » Leave a comment

On Thursday, January 18, 2017, Christine Cave will be in Tulsa to discuss reasonable accommodation under the Americans with Disabilities Act (ADA) presented by the Oklahoma Center for Nonprofits. Employers needing assistance on reasonable accommodation should contact the attorneys at Employers Legal Resource Center at 405.702.9797. For more information about the presentation series, contact the Oklahoma Center for Nonprofits.

Congratulations to Paralegal Tari Larkins on Her Four Year Work Anniversary!

By | January 9th, 2018 | News » Leave a comment

Employers Legal Resource Center congratulates paralegal Tari Larkins on her four year work anniversary today!  Tari, you help keep things running so smoothly and brighten our day with your smile in the process.  Here’s hoping there are many more work anniversaries ahead!


Christine Cave Discusses Reasonable Work Accommodation!

By | January 8th, 2018 | News » Leave a comment

On Wednesday, January 10, 2017, Christine Cave will discuss reasonable accommodation under the Americans with Disabilities Act (ADA) presented by the Oklahoma Center for Nonprofits. Employers needing assistance on reasonable work accommodations should contact the attorneys at Employers Legal Resource Center at 405.702.9797. For more information about the presentation series, contact the Oklahoma Center for Nonprofits.

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