Mitigating Risk Through Performance Management (Alessandra L. Cortina, Esq.)

So you have a law firm or business with employees. Things are going well and then, your admin. or associate starts to drop the ball. Strike one. Now, we missed the deadline for filing our motion for summary judgment (woah) because it was not calendared when you asked for it to be. Strike two. Three weeks later, a client sends a harsh e-mail threatening to fire you because you have not returned her calls in weeks. Strike three. Something is up. Now what?

At some point, as an employer, you will be tasked with a great challenge of managing an underperforming employee. Terminating an employee is never easy. Of course, as employers, we take on a huge responsibility and risk when hiring and firing employees. Having solid processes in place can help minimize stress and mitigating legal risk and potential EEO claims.

What is performance management?

Well, as a start, performance management is NOT having a freak-out moment, scream from your office, and start firing people (if you are an attorney reading this right now, you may be laughing because at some point, we have all witnessed something like this at a firm!). Performance management can consist of various processes and can look very different from firm to firm or business to business. The size of the company and number of employees really dictates how robust performance management can be. At a Fortune 500 company (where I started before my legal carrier), there are a number of checks-and-balances in place in order to mitigate legal exposure and potential litigation, prior to terminating an underperforming employee. Certain “large” companies have entire teams of ex-litigators offering legal guidance to management in order to mitigate risk (we call this “Employee Relations”), while a small mom-and-pop shop will have less sophisticated and different processes in place (if any!). However, the fundamentals are the same. Creating concrete internal processes starts with being organized and documenting issues. Sounds easy, right? Performance management takes work. It requires the employer to invest time and effort in the underperforming employee. For instance, documenting specific issues, short-falls, errors, and violations of company policies is an important start. By documenting issues as they arise, the employer has concrete evidence and real examples of concerns when approaching the employee about performance issues. Arbitrary statements like, “well, you’re missing deadlines and you work slow,” is not going to be helpful in any performance management conversation. This type of approach will only make the employee defensive, less receptive, and less likely to ask for assistance or want to improve. Having concrete examples of clear performance issues will help facilitate effective conversations with the employee.

Before firing an employee on a “whim,” you should ask yourself the following questions:

1. Have I had conversations with this employee about his or her performance and my concerns?

2. Has the employee improved at all or shown any effort in making improvements?

3. Does this employee fall within a protected class? (EEO)

4. Has this employee raised complaints that have gone unaddressed in the past (i.e., lack of resources, help, sexual harassment claims, etc)?

5. Have I offered any solutions or assistance in helping this individual improve?

Employers often underestimate the legal risk associated with terminating an employee. Sometimes, the performance issues can come as a complete surprise to the employee. The employee may think he/she is an “allstar,” because you have been so “nice” to them. Meanwhile, you are dying to get this person out the door (some familiar?). If this sounds like you, then you need to start performance managing appropriately. That is why I highly recommend ongoing performance reviews (2x per year), having open conversations and setting expectations with your employees so nothing comes as a surprise. Human capital is a company’s greatest asset. You must invest in your people. Without good employees, your firm or business cannot run successfully. Without good employees and support, you, as an employer/owner, cannot run a business with peace of mind knowing that your business is being carried out in the best way possible. I hope you have found this blog post to be resourceful. There is so much more to performance management and career development and I look forward to contributing more in the future. For additional information and HR tips, follow me on Instagram at: @thelawyerista or email me at:

Alessandra L. Cortina, Esq.

“The Lawyerista”

Instagram: @thelawyerista