THE TOXIC EMPLOYEE AND SEPARATION AGREEMENTS
by Matthew Dolan, Attorney
©2014 Matthew Dolan, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)
Within public safety agencies across the country, a small percentage of employees generate the overwhelming majority of stress in the workplace. These are an agency’s toxic employees. Toxic employees are those who can be so manipulative and problematic that other employees dread coming to work. They are perpetual plaintiffs who file a multitude of baseless grievances, complaints and lawsuits throughout their careers. Having little or no concern for the mission of the agency, they often refuse to accept responsibility for mistakes in their work performance. They work to intimidate supervisors while deflating the morale of their fellow employees due to management’s inability to hold them accountable for their actions.
When confronting the challenges associated with toxic behavior, the earlier that agency leaders document and address emerging issues, the more legally defensible their employment actions will be. A comprehensive approach begins with a thorough hiring and background investigation prior to employment, followed by progressive discipline policies and accurate and ongoing performance evaluations. All of the aforementioned strategies can assist public safety leaders in dealing with this small but extremely damaging presence in the workforce in a way that both protects the integrity of the organization and is legally defensible.
But what does an agency do when a toxic individual has worked in the agency for years without any significant documentation of their poor performance and/or misconduct? What if they have several years’ worth of inaccurately positive performance evaluations on their side? What if they have actually grieved and bullied their way into promotions? How does an agency remove the toxic employee, as is often essential to improving the morale and performance of the agency as a whole, while minimizing the legal liability associated with a termination? Whatever supervisory action that is taken must be legally defensible, particularly in light of the fact that one of the dominant traits of many toxic employees is that they are highly litigious. Their removal from the organization tends to be followed by expensive, stressful and public legal action, often in the form of unfounded claims of wrongful termination, discrimination, harassment, etc.
A separation agreement is one important tool available to public safety agency leaders across the country, though many may not have a familiarity with its utility. Typically, under a properly constructed separation agreement, a problem employee waives his or her rights to bring legal claims stemming from their employment with the agency—such as wrongful discharge claims or discrimination claims or harassment claims—in exchange for monetary compensation to which they would not otherwise be entitled. So long as the agreement complies with all relevant state and federal contract laws, this tool can allow an agency to move forward with the knowledge that any legal claim of unfair treatment brought by the toxic individual will be promptly dismissed in court in light of the legally binding promises made in the agreement.
In the private sector, many companies utilize separation agreements as a standard operating procedure and view the agreed-to compensation as simply the cost of doing business. Often times, a corporation’s legal counsel will advise on the manner and gravity of the liability exposure in the case of a particular employee and seek to negotiate an agreement in light of that exposure. Public safety agencies possess the ability to pursue a similar course of action.
Undoubtedly, the prospect of giving financial compensation to a toxic employee can be very difficult for public safety leaders to accept. There is often a feeling that such an agreement is ultimately rewarding bad behavior and offering additional compensation to individuals who have already taken much more than their fair share from the organization. In many respects, that may be true. However, that cost will often pale in comparison to the costs of litigation—financial costs, social capital costs to the reputation of the agency and the time-consuming and stressful effect on the men and women of the agency. Furthermore, in many cases, litigation concludes not with a verdict but with a settlement. A separation agreement allows an agency to avail itself of the same protections as a settlement without the years of financial cost, stress and strain.
While the utilization of separation agreements does not represent an “easy fix” for dealing with toxic employees, it can be an extremely useful tool for leaders in public safety who want to put the personnel management mistakes of the past behind them and move the agency forward. When comparing the process of negotiating with and compensating a toxic employee against the alternatives—either continuing to live with toxic behavior or terminating the individual without an agreement and exposing the agency to lengthy litigation—these agreements often prove to be the best available option, both for the agency’s finances and the productivity and well-being of the agency members.
When contemplating a separation agreement, public safety leaders should be certain that the proposed agreement itself is properly drafted by legal counsel, as these agreements are subject to jurisdictional contract law and even minor oversights in their drafting can render the entire agreement unenforceable.
Ultimately, although attempts to produce a reasonable separation agreement will not always be successful, they represent a viable option worthy of consideration for public safety leaders who are seeking to confront toxic behavior and minimize its negative effects on the agency.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.