Performance Management, Workplace Dynamics, and Employer Liabilities, with Mark F. Kluger

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John: Mark Kluger, welcome to the conversation today.

Mark Kluger: Thanks John. Thanks for having me.

John: It is a pleasure to be with you. You're joining us from New Jersey. I'm, um, south of Salt Lake City in Utah and today we're going to be talking about performance management issues within the workplace, various workplaces, place dynamics related to that and, and how we can leverage it to reduce employer liabilities and really just help everyone in the organization to thrive. As we get started, I wanted to share Mark's bio with everybody. Mark Kluger practices exclusively in the area of labor and employment law on behalf of employers for 10 years. Before founding Kluger Healy LLC, he was chairman of the labor and employment department of one of New Jersey's oldest law firms. Mark is a frequent speaker and writer on sexual harassment and discrimination avoidance, workplace diversity management, union avoidance, and a myriad of other employment related subjects, and regularly conducts training sessions for employers on these critical topics. In addition, Mark has extensive experience in counseling employers on his issues on issues involving discipline and discharge, reductions in force, mergers and acquisitions, compliance with wage and hour disability, cobra, and family and medical leave laws. And there's a whole lot m more I could share about Mark, but I'm going to pause there. Mark, anything you would like to highlight before we dive on into the conversation?

Mark Kluger: I think that's plenty, John. More than enough.

John: All right. You know, it's so fascinating. The employment and labor law, um, landscape is complicated, ever evolving, uh, some may say fraught with, uh, challenges at the moment. Uh, but it's also fascinating because it's always changing. Um, and it's one of the most interesting areas of HR for me. Uh, not because I want to always just have to focus on compliance issues, um, you know, but because it's just so central and foundational to so much of what we try to do. And I'm always a, I'm a believer in like, let's get past compliance culture. Let's move towards commitment culture. Let's like, hopefully we can create an environment where everyone wants to show up, do their work, do a great job. No, you know, it's a safe place. Nobody wants to harass each other, nobody wants to treat each other badly. Like, it's just, you know, that's the ideal. The problem is we don't live in the ideal world and bad things happen. People do things they're not supposed to. Companies have to make sure that they're monitoring all of this. Uh, and so that's where you come in. That's where this whole field comes in. Um, why don't we, as we start out, uh, just frame up from your perspective, uh, how you look at performance management. Um, and I ask this in part because I know you can get different folks in the room and ask the same question and I think get slightly different, in some cases, wildly different kinds of responses from frontline managers, senior executives and HR person and uh, uh, employment and labor law attorney. Um, so how do you kind of frame it up in your mind?

Mark Kluger: I see performance management as really, uh, there are two primary goals to it, one being the most important, which is to Help employees thrive, be better at what they do, and reach their potential. And the other, of course, as an employment lawyer, is, uh, as a defense mechanism to litigation avoidance, meaning that, uh, it's critical to create a record of the efforts at performance management really for two sub reasons. One is to, uh, you know, really to have employees have something to look back at, um, in terms of, uh, expectations and articulate and articulated expectations. And really the second subpart of that is to create a defense so that in the event things go bad and there needs to be an exit strategy, that it's a well documented exit strategy that can be used to either, uh, dissuade litigation, dissuade a lawyer not to take a case, or to defend one if should one occur.

John: Yeah, and I can't. I'm sure you see this all the time, but I can't tell you how many times, uh, I've had this kind of a conversation, uh, some, some variation of the following conversation where, you know, a manager's like, I got to get rid of this person. They're terrible, they're toxic, they don't perform, they're dragging down the team. And then HR is like, okay, well let's, let's look at their performance reviews. And then they look at them and it's like, exceeds expectations five years in a row. You know, something like that. And then, and then you're like, okay, what's the basis? You say this employee is terrible, that they're toxic, that they're driving down the team. Yet none of that shows up in existing documentation, um, which is all positive. And then there's. There's no other corrective action documentation. There's nothing, uh, there's no basis. And at that point, you know, it's, it's kind of like, I know managers get upset and they're like, well, HR won't let me fire this bad person. I'm like, uh, it's kind of your fault because you didn't actually like, do the normal stuff. Now, in an ideal world, again, coming back to ideals, and we're not always in an ideal world, but in an ideal world, a good manager and a good leader should be developing their people. And so when you notice a problem, if you notice bad behavior or someone, uh, is not following policy or their just performance isn't up to par, you coach them and mentor them and get them the training and you help them. And a lot of times folks will improve, like with, with good, uh, a good structured, uh, performance improvement plan and you know, a genuine desire to Help them improve. A lot of people want to do good at their jobs. Like, I don't know many people who wake up thinking, I just want to like, skate by and do nothing and I don't want to do well. You know, most people do. And so like, first of all, that manager who says, I want to get rid of this person, and all they have is exceeds expectations across the board. You know, they've never given their person a chance to improve, probably. Um, and from a liability standpoint, oh my goodness, like, you kind of have no basis. You know, if someone comes back at you with a, uh, discrimination charge, I mean, what, what are you going to say? All you have is positive documentation. You probably see that all the time.

Mark Kluger: Yeah, that, I mean, that's really how I got into doing performance management training is because I started reverse engineering all the things that went wrong in litigation. And they started with those performance reviews that you're talking about that say, exceed expectations. And I started realizing that the reason that that happens is human nature. It's because if you approach, uh, performance management from a conflict, uh, avoidance standpoint, which is what most of us do as just natural, uh, you know, do you wake up in the morning and say, I want to have a confrontation with this employee today. Do you want, you know, it's just aggravating. So people write the things that will avoid conflict and that's how they go about their performance management as well. What happens is in that conversation that you're talking about, that happens about, I want to fire this person today. Those are always Friday at 5 o'. Clock.

Speaker N: Right?

Mark Kluger: You can ask any management defense lawyer, they'll tell you, uh, employment lawyer, that is, that they get calls like that and HR gets them to 5:00 clock on Friday because the employer or the manager is saying, I don't want to see this person Monday morning. You know, get them out of my life. And then as you said, we look at the documentation. To me, the framework that, and you use the word John, mentor. Um, and that, I think that's the missing link, right, is that managers think of themselves as the boss. And you know, performance management should be criticism as opposed to education, training, mentorship. And that's really the key to sort of turning the process around.

John: Yeah. And I really, truly am a believer that good managers, good leaders, you know, they're all about building up their team, developing their team, building their bench strength. Um, you know, and, and it's, and I know that that's hard. Like, uh, you know, sometimes people say, oh, that's Too soft. You have to be stronger, you have to be, um, you know, more in people's faces to get them to perform or whatever. And I, I suppose it depends on the job, it depends on the industry, it depends on the type of people. Everyone's a little bit different. But generally speaking, uh, most people, you know, perform better and want to be part of a company and part of a job, part of a team. When they feel supported, when they feel encouraged, uh, when, when they feel like they have opportunities for growth and when they're, when their boss understands them and, and helps them to achieve their potential, uh, that is the environment where most people tend to thrive.

Narrator: The best.

John: Uh, and so good leaders, you know your number one job, I mean yes, you have to like meet your KPIs and you have to like make sure that you staff and you like all the kind of nitty gritty day to day stuff. But too many leaders get caught up in only the day to day stuff and putting out fires and they don't do the real work of leadership which is building that team and that camaraderie and the culture and the support mechanisms around people to help them to achieve and to perform at their highest level. That is, you know, if you're looking at sports, it's easy to see that, right, like of course that's what you want. Good, good coaches, um, good managers to be able to do, um, and yet when we get into the workplace, I think a lot of times those things are forgotten or people have, do have the best of intentions, they want to do that and then they just get caught up in the day to day grind and putting out fires and they feel like they never have time to do those things that they may even believe are the most important things. And then you just, you see this cycle over and over and over again. Uh, of, of teams with dysfunction, um, leaders being frustrated because they're being held accountable for their team's performance and their team's not performing. So now, you know, it's kind of like, you know, a parent losing their temper with their kid because they didn't clean up their room again. And I'm like, you know, it's, yeah, sometimes it's frustrating because your kid doesn't clean up the room, but also sometimes you got to step in and do provide some support or help them understand how they can keep their room clean or whatever. Like, I don't know, that's probably not a great example. But the point is like a great

Narrator: leader builds their team.

John: That's like the number One thing that they do, you often get promoted because of your technical expertise, because you're a top individual performer. Once you're in a leadership role, though, it's not about that anymore. It's about leveraging the people on your team to drive performance. And it's quite a different skill set. And a lot of people really struggle, despite what may be the best of intentions. Right.

Mark Kluger: Well, because people, as you said, become managers because they're good at the job. That doesn't mean they know how to manage people. And that's, as you said, a completely different skill set. And I have found over time that, um, you know, some people just aren't cut out for it, obviously. And, and that is, you know, their boss's job to figure out whether they're capable of that. But I also think that a good leader and one who does performance management well, has to be introspective about, uh, their own expectations and whether they actually articulate them. I think we all have in our heads we know how to do the job. And intuitively, they should know how to do the job, because I know how to do the job. And they must know what I want because it's obvious what I want. And that's, you know, that's what people are too often, managers are too often not introspective about. Did I actually articulate for the employee what I expect of them? And the other thing that I found over time in doing performance management training is, um, it's important to recognize, you know, we learned, you know, when I went to school, probably when you went to school, the teacher stood in the front of the classroom, we all sat in rows. The teacher talked, we wrote it down, we listened. Right. Well, over time, education has evolved into, um, you know, recognizing that people learn differently and, you know, that. And that the style of teaching has, as a result, changed. Well, the same is true in the workplace. Not all of us learn the job skills the same way. And bosses have to understand that. Sometimes people need to see you demonstrated. Sometimes people need to see instructions in writing. Sometimes people need to see a video in order for it to sink in. And you can stand in front of the room and yell at the employee all day. If they're not getting it, they're not getting it. Maybe you need to try a different approach. I can tell you one. Anecdotally, I've done training in police departments, management training for, uh, police officers. And I had one cop who's a lieutenant or captain who stood up, and he was really, uh, great about this. He said, Listen, I get that this is not the thing, but I grew up, um, in a family, military family. My dad was a Marine. My grandfather was a Marine. I was a Marine. He said, I learned great when people yell at me, you know, m. He said, I know that's not what I'm supposed to do as, as, you know, as a leader, but I learned that way, you know, but he understood that he needed to adapt his style to those people who he commanded. And the same is true, really, at any level of management is you got to be hurt. And if you're not heard, it's really not worth communicating. So if you're not getting through to an employee, maybe you need to take a step back and say, am I approaching it correctly? Before we get into the exit strategy. But going back, John, all of that, all of those steps need to be documented so that we can demonstrate that we gave the employee a chance to succeed.

John: Yeah. Yeah, absolutely. And being able, as you mentioned, you know, being able to really articulate expectations, that sounds obvious. It's. It sounds like it might be easy. It's anything but. Um, and, and in part because, like you said, sometimes we're not introspective enough. Um, communication styles, whatever. Uh, it could be a whole variety of things. Um, but in my experience, most leaders just under. Communicate. Um, they, they kind of just expect people to read their minds. Or like you said, they, they know how to do it. And so of course, everyone else knows how to do it. Someone else. So when someone else doesn't do it the right way, instead of it just being, oh, they don't know how to do it, it's like, oh, they, they're being lazy. They're on purpose not doing it the way they're supposed to. And again, yes. Are some people lazy? Yes. Do some people intentionally perform poorly or just don't care? They're apathetic. Yes. Uh, but most people, you know, want to do a good job. And so to, like, start with the assumption, um, that they're an idiot or they're, you know, lazy or malicious in some way is just not helpful. And usually it comes back to, you just didn't communicate enough. Um, or you may I send an email. I send an email to everybody telling them what to do. I'm like, good for you. Sending an email. Do you read all your emails thoroughly and fully comprehend everything? You have to usually repeat things over and over again. And I know that's annoying, but it's also just part of the deal, and it's part of human nature. We Got to hear things multiple times, especially if it's a change. Because our muscle memory, our habits, will just take us towards what we used to do, even when our intention is to change it up. And so, yes, I think a lot of leaders just are not great communicators, or not as much as they need to be. They fall into the trap of thinking, oh, I said it once in one meeting, and so therefore everyone should know, uh, or even if they didn't say it to this particular team, I said it to their boss in a meeting once, therefore they should have trickled it down. And now people, you know, it's on them. Like, no, it's really not on them. Like, it's really on you. And so you just have to be super intentional. Um, I've also noticed, and it's a cultural thing, maybe it depends on different regions, different locations are different. Um, but people trying to be nice. Conflict avoidance can also lead to passive aggression, you know, and so people will sometimes be quite passive aggressive in how they're dealing with an employee that they see as a problem employee. Instead of being clear, instead of being direct, um, and then they scratch their heads and they get more and more upset and more and more, um, frustrated. Because in their minds, they're like, I said something to the person and they didn't do anything about it. And you ask the person, they're like, I never heard anything about it. Someone once vaguely said something and it was kind of tangentially related in the mind of the manager, they were clear. In the mind of the person, there was no clarity. And that happens all the time, too. So the documentation, yes, it helps with the liability piece, and it helps organizations, um, avoid litigation and such, but it also just helps clarify expectations. Like, it just helps put it down in writing so everyone on both sides can really understand what's going on. You're not trying to read people's minds. You're not trying to, um, guess what people were thinking or try to have a perfect memory of how a conversation went weeks or months later. It's there, it's in writing now. You can refer back to it. And it's protection. It's protection for the employee, it's protection for the employer. And so we just need to be much better communicators when it comes to performance coaching, performance management, and trying to drive those types of more healthy cultures within a team.

Mark Kluger: Yeah, and that documentation is also critical because it has to serve as a reminder to the manager as well to keep revisiting the topic. Because you mentioned the Analysis, analogy to children. And it's, you know, I always think of it the same way that when, when a parent stops making something a priority, um, so what message does that send? And the same is true in managing an employee. When, uh, when a manager stops revisiting a topic, then you know, I think implicitly employees stop thinking it's important. You know, maybe consciously or subconsciously they haven't asked me about, you know, my, my timely filing of reports. So, you know, I'm going to, you know, maybe it's not important anymore. And I think that may be subliminal. But if, if a goal is set and it's not revisited several times throughout the year, that goal slips off, the, slips out of the mind of the employee. Um, and so it's incumbent upon the manager to keep whatever those goals are, um, you know, at the forefront of the employee's mind and keep coming back to it. And you know, and that's why we have evolved from, you know, the traditional annual performance review.

John: Yeah.

Mark Kluger: To much more frequent feedback as a methodology of ensuring, you know, top performance.

John: Yeah. Well, and it's, it's also no wonder that people don't find kind of the traditional annual performance review helpful. No, um, wonder they're often inaccurate like exceeds expectations for every year for this person. That I think is terrible. Um, because in the traditional kind of annual review everyone gets slammed at the same time. Uh, and if you, especially if you have a lot of people on your team. And so it's like this big chore, everyone thinks it's dumb, everyone thinks it doesn't really work or do anything. Um, employees don't like it, employers and you know, the managers don't like it. And so inevitably what happens when that's the case? People start going through the motions, they start just filling stuff out.

Speaker N: Right.

John: And so of course no wonder you're going to have things that aren't particularly accurate or helpful or useful. Um, and so yes, the whole world of performance, uh, management has shifted dramatically. And I think everyone pretty much knows. I still see organizations that only do the annual. But um, for the most part everyone knows and has moved towards implementing more continuous feedback cycles. Um, and it can be formal, a combination of formal, informal. But you have to, um, have more regular communication, more regular feedback cycles. And then you have to do the work of documenting what happens in those. So even if it's an informal, normal coaching or mentoring session with an employee, a good manager should then go back afterwards, summarize what happened in that meeting, maybe even send a follow up email to their employee saying, hey, thanks for meeting with me, this is what we discussed, blah, blah, blah. Then you have documentation, you know, for it. And, and it can still be a fairly organic and informal kind of a setting so people don't feel all tense about it. Um, but just getting into the habit of, of doing that is going to help you be a better manager. You're going to know your people better. Um, but it'll help the organization a lot too, and your team.

Mark Kluger: And you know, to go back to what we were talking about earlier about, you know, uh, the performance reviews that said, uh, exceeds expectations, you know, I think I have seen, and again, I think this is what drove me to do performance management training was those performance reviews, the annual ones that use those adjectives, you know, those traditional adjectives where the employer or the manager is sure that they gave a bad review. Why? Because they said satisfactory, which is like a C. Right. If you think about a B and C, D, you know, from, from school. Right. Satisfactory, you know, is a conflict avoidance technique. Right. Because it's like if you give a fair or poor, you're going to have to explain yourself. Right? So if you give satisfactory, okay, that's not good or excellent or exceeds expectations. So in their mind, the manager is giving them a poor grade. But you take a 10 year employee with Satisfactory every year for 10 years and put them in front of a jury after they were fired and they're, and they're bringing an agen discrimination case and the jury is going to look in the dictionary and see satisfactory means meeting expectations.

John: That's their job.

Mark Kluger: So how do, so how do you defend that case? Right. And so I, you know, so I've raged against the adjective form of reviews, even if it's more m often than annual, because, because the adjectives don't mean anything. And I try to drive managers to do narratives with examples and examples that you have to that are, you know, not just like what happened last week. Okay. And again, that's how performance management has evolved, as you said, to much more frequent feedback. But I think, you know, and I used to blame the millennials, and now I thank the millennials for taking us there because they're the ones who said, why are you telling me in December something I did wrong in February? Doesn't that mean that I've been doing it wrong since February? And you just waited till December to tell me it didn't make sense? It still doesn't make sense. And so more immediate feedback is critical to really helping employees, uh, achieve what you expect of them, but also to. I always tell managers who say it's a ton of work that what you're asking me to do. And I always say yes, but it's a lot better than you're blowing your top in November, December at the annual performance review when you're really frustrated and angry that they did not improve throughout the year.

John: And yes, it's a lot of work, but, you know, a little strategic work up front saves you a lot of time and effort and misery, potential misery later on. And it's your job. Like, that's literally your job. Uh, yeah, like manage your team and manage performance. So, you know, I get it.

Narrator: It's.

John: And, and that's. If it seems superficial, if it seems performative, yes, people are going to be upset about that. So do stuff that really matters, like, and it actually is going to be. Have a chance of moving the needle, then I think you'll get people more on board. Well, Mark, this has just been a fantastic conversation. I know at the time, and I need to let you go here in a minute. But before we wrap things up for today, I just wanted to give you a chance to share with the audience how they can connect with you, find out more about your work, um, and then give us the final word for today.

Mark Kluger: Sure. Uh, John, thanks for having me. This has been a lot of fun. Um, I am reachable at, uh, uh, mclugerlugerhealy.com healy is H E a L E Y Everyone always leaves off the last E. Uh, we have a website, clubyourhealy.com and I, uh, do a fair, uh, amount of this kind of training, John, because I have found it is the best way to help my clients avoid litigation problems is by getting ahead of it with having good performance management system.

John: Yeah, absolutely, Mark. It has been a real pleasure. Encourage the audience to reach out to get connected. Find out more about what Mark can do for you. And as always, I hope everyone can stay healthy and safe, that you can find meaning and purpose at work each and every day. And I hope you all have a great week.

Narrator: Thanks for joining us for this episode of the podcast.

John: We hope you stay healthy and safe

Narrator: and please join us again soon.

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