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Respectful WorkplaceEmployee Performance ManagementAmericans with Disabilities ActHR Best PracticesHiring and On-boardingFeaturedOctober 21, 2013by Stanton Law“Derailers” and Employment Liability: Or, How to Get Out of the Way Before the Train Jumps its Tracks

Much of our advice to clients flows from observing two principles of human behavior, the first being: Angry people sue. Appreciating Principle #1 often helps employers navigate turmoil (or near-turmoil) with existing employees. Having patience and taking extra steps to manage employee expectations can sometimes avert or downgrade a brewing conflict, and proactively maintaining a positive workplace often prevents conflict all together.

Yet no matter how well you manage existing employees, experience shows that a few individuals will never be satisfied, a few will commit major HR-screw ups, and a few will sue you. Should you resign yourself that this is simply the cost of doing business? Not necessarily, if you subscribe to Principle #2: The best way to avoid an employment lawsuit is not to hire one in the first place.

Most clients find applying Principle #1 relatively straightforward, if not always easy to do. But how do you apply Principle #2? Sure, we’d all like to make perfect staffing decisions all the time, but this is the real world. Sometimes work piles up faster than you can delegate it, and suddenly you just need butts in seats like, yesterday. And even if you had all the time in the world and unlimited HR capacity, no one can read minds or predict the future, right? After all, “highly litigious” or “inappropriate hugger” rarely appears on someone’s resume. What else can you do?

No single personality trait encapsulates all workplace troublemakers, but a handful of patterns in attitudes and behavior emerge frequently enough to become recognizable fairly quickly to employment law practitioners.  Dealing with HR drama (and its attendant drama queens) is, after all, what we do all day. Which is why, when I first heard the term “derailer” at a SHRM chapter meeting, I already knew exactly what it meant without further explanation.

But further explanation I sought, and sure enough, when I explored Hogan’s Derailers online and heard Sarah’s explanation of the traits, my suspicions were confirmed – behold, the fount of “counterproductive work behavior.” While not literal people, several of the traits so accurately composite the characters who either sue our clients or incur employment liability on their behalf as to be uncanny. As my dad (an HR veteran) and I laughed – they’re funny because they’re true.

I got really excited as soon as I realized that there was not only a name for the group of personalities permeating so much of our work, there was also a way to identify them early.[1] Hogan’s survey can be administered to candidates before hire or other major employment decision, and high scores in troubling areas could throw up the red flag you’d never find on a resume. If bad hires have bitten you in the legal budget more than once, think about investing in these tools as a way to save yourself attorney’s fees (and headaches) down the line.

If asking potential hires to fill out a personality survey just isn’t going to happen, at least familiarize yourself with some of the most troublesome derailers and keep them in mind as you interview and check references. Based on nothing more than my informed speculation, here are a few to look out for:

Derailers who will sue you:

  • Skeptical – This guy doesn’t trust you (or anyone), and assumes everyone hates him and things will end badly. Not surprisingly, both often do. He’s a snoop, a tattletale, and a conspiracy theorist. Since everyone is always against him, he acts preemptively, and will try to beat you to the punch when your relationship with him inevitably sours.
  • Leisurely – Perhaps a surprising choice, but the Leisurely derailer isn’t just lazy, he’s looking for the easiest possible way out. Expecting something (a paycheck) for nothing (napping at his desk) reflects an attitude that often resurfaces in employment litigation. Employers are frequently surprised to see how many more hours their former employee will devote to suing them than they ever did to working for them. If settlement checks are big enough, though, Leisurely is first in line.

Derailers who will get you sued:

  • Excitable – After decades of workplace sensitivity training, most people are unlikely to shoot off a pejorative, expletive-laced, name-naming, ALL CAPS email to the entire office…with the possible exception of this guy. Smoking guns aren’t that common in discrimination litigation since “hostile work environment” became a household term, but Mr. Excitable missed that memo.
  • Bold – the Bold derailer is “that guy” – so self-confident he’s borderline delusional. His boundaries are defined by how far he can reach, which is sometimes into the personal space of his co-workers. Hey, who wouldn’t want to give the captain of Team Awesome a back massage?

Derailers who go both ways:

  • Colorful – Colorful derailers can get you in trouble in more ways than one, but their attention-craving tendencies make them easy targets for plaintiffs’ attorneys. Like little kids, Colorful derailers will demand attention regardless of type, and if nothing positive is available they’ll take the negative, just to keep the spotlight on them.
  • Mischievous – When you finally get to the bottom of the latest office intrigue, this guy’s name somehow always comes up. He’ll start trouble to get what he wants, or just because he’s bored. When former employees sue there’s often a mole on the inside – this guy. He covers his tracks, so you probably won’t realize he’s playing you until it’s too late.

Words of caution:

In the same way that “everyone’s a little bit racist,” everyone’s a bit of derailer in his or her own way. If you do decide to screen for these traits only worry about the extremes, since there’s probably no way to avoid them all together. Also consider the position and the environment – Skeptics might not make great preschool teachers, but any accountant worth his salt has to assume you did something wrong when he’s doing your audit.

Also recognize the fine line between personality variation and mental illness. Employers using these tools aren’t expected to spot the signs of, say, schizophrenia, (nor are these tools designed to reveal them) but tread very carefully if you have reason to know that someone’s variance rises to a clinical level, since psychological conditions can constitute disabilities implicating the Americans with Disabilities Act and generally should not be the basis for employment decisions.

Also beware of how you use these surveys to avoid the risk of discrimination. The Hogan survey has been validated, i.e., studies have shown that the test itself does not deliver results that disparately impact one group more than another. While that’s a good sign, make sure you don’t inject your own bias into the process. Decide which traits to consider before you see candidates’ results, not after, and apply whatever yardstick you choose as consistently as possible.

A last note: identifying derailers through pre-hire personality assessments is an intriguing and potentially useful strategy to help prevent employment litigation in your workplace. There’s no way to know exactly how well it works, though, and as with most predictions of human behavior, there are no guarantees.

[1] If you weren’t sure whether I was excited before, this post’s excessive use of italics might give you a hint.