Low Hanging Fruit - Employers Legal Resource Center

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

August 30, 2018

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.com. 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.

Employee Performance and Conduct - Employers Legal Resource Center

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.

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