No More Mr. Negative: How To Handle A Toxic Employee In The Workplace

An employee’s attitude can cause more disruption to a work environment than you thought.  The problem simply isn’t a matter of ability; rather it is a matter of attitude.  An employee’s aggressive or dysfunctional attitude can manifest itself in everything from quiet disobedience to outright insubordination.  It is important for an employer to maintain a positive and healthy work environment to ensure your company is productive and thriving.  As a business owner you must be able to address employees with attitude problems to preserve the work environment.

Here are some valuable tips on managing employee attitude issues:

  1. View the situation strictly as a BEHAVIORAL problem.  Instead of engaging in a debate about the employee’s dysfunctional or aggressive ATTITUDE it is best to view the situation merely as a BEHAVIORAL problem.

Employers should document the employee’s BEHAVIOR.  Be sure to record any specific verbal or physical actions or behaviors that distress you, damage productivity, negatively impact workplace morale, or reflect poorly on your business.  Also remember to write down nonverbal behaviors including if the employee rolls their eyes, clenches their fists, or stares into space.

  1. Pinpoint the issue to the particular problem. It will help to identify the exact type of behavior the employee’s attitude has caused.  Take a look at this list of examples to help you determine the specific issue:
  • Aggressiveness
  • Carelessness
  • Complaining
  • Insensitive to others
  • Excessive competitiveness
  • Disruptive or explosive conduct
  • Laziness
  • Inattention to work
  • Impoliteness or rudeness
  • Excessive socializing
  • Pessimistic/cynical outlook/negative posture
  1. Document the frequency of the employee’s transgressions and how they affect colleagues’ performance, the workplace environment or work flow. Be sure to list all justified business reasons as to why the behavior must cease.
  2. Speak with the employee, one-on-one. Make sure this meeting is in private and takes place when no one is around.  Explain that you wish to discuss the employee’s behavior.  Highlight situations where the employee handled themselves appropriately AND situations where their attitude caused them to behave negatively affecting those around them to be uncomfortable and ultimately having a negative impact on the company.
  3. Do not feel bad about being direct. Make known to the employee the behaviors you won’t tolerate.  It is important to clearly explain to the employee that their behavior must stop.  It is a good idea to then follow up with a description of the behavior preferred in the workplace.  For example, you might want to explain that the employee needs to be courteous, helpful and cooperative.
  4. Let the employee have an opportunity to respond. Your employee may want the chance to explain why they had a behavioral problem.  Be sure to stick to the issue and not get “smoke screened” to discussing other subjects or other people.  Stay on the subject.  The employee may not be aware what he or she is doing or may not realize how it affects the workplace environment.  Alternatively the employer may realize an employee’s actions are an indication of a more serious problem.
  5. Help the employee improve. Give the employee tips to fix their problem.  Or if the employee’s issues are caused by a problem in the workplace try to resolve that issue.
  6. Be sure to document the meeting and put the document to file. Also be sure to monitor the employee’s behavior going forward and depending on the severity, the employee should know that if no improvement is seen, “further action will be taken up to and including termination of employment.”

Bad attitudes always translate to bad behavior which ultimately affects the culture of your organization.



Article Prepared By:

Keith Frank, SilvermanAcampora LLP

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Active Shooter Response: What’s Your Emergency Plan Of Action?

In this day and age, violence can occur in any type of work environment, including the workplace.  An emergency action plan should be implemented to prepare response protocols that can be activated in a crisis situation.  A response plan targeted at workplace violence is recommended because unlike other natural disasters or hazards, workplace violence involves a thinking, mobile and dangerous human being.  Not only are there safety reasons for businesses to develop and adopt emergency action plans, but there are sound business reasons to implement these plans.  Studies have shown that up to 40% of businesses affected by a human-caused or natural disaster event never reopen.  A sound emergency action plan that is communicated to all employees and tailored towards your business specifically can save lives and your business.

Employers should take into consideration that an active shooter is usually going to have one thing in mind: cause as many casualties as he/she can until stopped.  Active shooters will generally not negotiate because his or her agenda is one thing, to cause casualties.  Once confronted by someone who can stop them, most active shooters will commit suicide.  A typical active shooter scenario is over in ten to fifteen minutes.

Historically, clients and/or customers constitute almost half of the active shooters in the workplace.  These people usually know the layout of the building, where employees are likely to be located, such as a conference room or break room, and they are aware of the planned escape routes.  Thus, your emergency action plan must be tailored to each specific work location and to employee needs and evacuation routes.

The emergency action plan needs to be communicated to employees with training on what to do, how to report an incident, whom to report to, and what red flags to be aware of throughout their daily work environment.  Employees should be encouraged to report a situation that may seem out of the ordinary or out of place.  Employers should develop a code that will notify all employees of a situation developing without alerting the shooter.  This code should be communicated to all employees during training, it should be simple to use, and sound like a routine communication in the work place.  The code simply could be asking “Alice, please call Reception” or “Alice, please report to Conference Room 3”, so long as no employee is named Alice or there is no Conference Room 3.

Employers should develop the following response policies once the code has been announced:

Run:  If employees are able to evacuate depending upon the situation they must leave all personal items behind and be vigilant to watch for any danger along the evacuation route (remember that the shooter may be familiar with the routes already set in place and could be waiting for evacuating employees at the exit point).  Employees should leave their cell phones in their pocket and keep their hands visible at all times so law enforcement may see evacuating employees are not hiding anything or holding a weapon.

Hide:  Employees choosing to hide must turn off or silence their cell phones and stay quiet.  If an employee chooses to text friends or family to have them alert the authorities, the employee should have a code word previously set up to let them know there is a legitimate emergency and that they should not call the employee back.  Hiding places must be inconspicuous, out of the active shooter’s view, and provide physical protection if shots are fired in the employee’s direction (e.g., locating a bathroom and locking the door, staying as low to the floor as possible and remaining quiet and motionless).  Employees should try to blockade the door with heavy furniture to prevent the shooter from entering the hiding place.

Fight:  Employees should remain calm, try to dial 911 and alert police to the shooter’s location, or if they cannot speak, simply leave the line open and allow the 911 dispatcher to listen.  Employees should only take action against the shooter when they believe their lives are in imminent danger.  Employees may attempt to incapacitate or disrupt the shooter by throwing items and improvising weapons, yelling, acting as aggressively as possible against the shooter, or commit themselves to defensive physical actions.  Employees should remember that anything and everything can become a weapon in this type of situation.  They should not worry about any possible harm to the shooter.

An emergency action plan must include a law enforcement response.  This portion of the plan should instruct employees to remain calm and follow officers’ instructions.  Law enforcement officers have only one thing in mind when responding to an active shooter situation, to stop the violence.  Employees must put down any items they are holding because if a law enforcement officer sees someone clutching a cell phone (a potential triggering device) or clutching a large bag, they will treat that person as a potential threat or suspicious person because the officer does not know what the shooter looks like or if the shooter is acting alone.  Employees should keep their hands visable at all times and avoid making quick movements toward the officers.  If an officer sees someone running towards them, they must make a split-second decision to determine whether or not those people are trying to harm them, and they may guess wrong, leading to unnecessary casualties.  Once the shooter is stopped or has been apprehended, law enforcement will then begin to provide aid and help victims.  Employees should notify a representative of the business once he or she has evacuated the premises.

The most important thing that employers can do is be proactive when combating workplace violence.  This includes having an emergency action plan in place and communicating that plan and training employees on what to do if the unimaginable happens.  Although an emergency action plan may not stop violence from intruding on your work environment, it will surely increase the odds and provide your employees with a better chance of surviving an active shooter situation.


Article Prepared By:

Haley Trust, SilvermanAcampora

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Businesses Beware! The Dangers of Providing Employment References

Employers must understand that providing references can lead to serious problems, including lawsuits for retaliation or improper interference with the former employee’s opportunity to secure a job, as well as for negligence for failure to provide information that a prospective employer needs to avoid serious harm.

It is important to establish a detailed procedure so that careless or casual responses to reference inquiries do not lead to disastrous litigation. A crucial first step is to designate who is authorized to respond to reference requests, so that replies will be consistent and in compliance with company regulations. It must be well known that only those designated may provide references, and that any questions (to an employee’s former supervisor, for example) must be referred to those designated to respond.

The safest course of action is to provide just basic information when a reference request is received.  Until recently that information included dates of employment, job title and salary.  Now, however, with some cities (including New York) and states passing legislation making inquiries about salary history unlawful, employers would be smart to omit that information entirely. That protects them from being dragged into litigation if an applicant believes his or her rights were violated because of improper gathering of wage information.

Employers acting in a consistent manner, and in good faith, meaning that any comments can be supported by objective evidence and without intent to malign with untruthful, harmful statements,  and who provide information that is clearly  job related, should be able to avoid suffering damages as a result of a law suit.  Obtaining a release and waiver from the former employee before providing a reference yields even stronger protection.

But employers must be aware that providing unjustified ‘rosy’ references which can mislead a prospective employer can also result in litigation, especially where an omission or misdirection exposes the new employer or its employees or customers to potential harm. Covering up embezzlement, child abuse, or other egregious behavior is just as negligent as providing false and malicious information.

A well thought out consistently applied process, appropriately documented with relevant and truthful information, especially where a release has been obtained, should provide an employer the protection it needs to defend itself in litigation resulting from reference responses.


Article Prepared By:


Rita DeStefano, Director, HR Consulting




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SEMINAR: 2018 Wage and Hour Crash Course: What You Must Know

Wed, April 11, 2018


Hauppauge Business Center (Adelphi University)

55 Kennedy Drive, Hauppauge, NY

In 2018, wage and hour violations are more prevalent than ever before. These complex laws are difficult to navigate and violations can be very costly, not only to your bottom line, but also to your reputation.



In this wage and hour workshop, we will explore:

* Critical details you must know about protecting your company from wage & hour lawsuits and DOL audits

* What time you must pay employees for and what time you must not * How to ensure correct job classifications (exempt, non-exempt, independent contractors)

* Most common wage violations and useful tip

* Wage and hour rules for each classifications to avoid them

Click Here to Register


Brian Shenker, Employment Law Attorney, SilvermanAcampora LLP

Mary Simmons, Director HR Consulting, Portnoy, Messinger, Pearl, Associates, Inc.

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SilvermanAcampora Appoints Jim Black To Partner

This week SilvermanAcampora, LLP proudly announces that Jim Black has been elected to Partner of the Firm. Jim has served as counsel to the Firm for almost three years as well as General Counsel to their client, Overseas Military Sales.  He specializes in guiding clients through the legal and procedural minefields that exist when doing business with local, state, and federal governments. Jim’s wealth of experience includes creating export compliance protocols and managing multimillion dollar bid/proposal processes.

Jim guides clients from the initial steps of government requests for information through proposal drafting, to the final contract negotiation and award. With over 25 years of experience, Jim’s gregarious personality and unique achievements as an attorney have enabled him to provide exemplary service to SilvermanAcampora’s clients. Jim is a prime reflection of the Firm’s core philosophy– Character Is Everything©.

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Ellevate Women’s Networking Group Explores Mental Illness

PMP’s Mary Simmons organized an event on understanding Mental Illness for Ellevate Women’s networking group. The topic was very well received. The presenter was Hakeem Rahim who is a national author and speaker on the topic and has testified in front of congress on mental health issues.


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PMP & SilvermanAcampora’s Anti-Sexual Harassment Training To Air on NHK World

Barbara DeMatteo, Director, HR Consulting at PMP and Jim Black Esq. of SilvermanAcampora LLP delivered Anti-Sexual Harassment training to over 60 managers from various companies on Long Island.  As we all know, this is a worldwide issue.  As a result, a crew from the Japanese Broadcasting Corporation (NHK World) arrived from Tokyo to interview Barbara, Jim and a few of the attendees.  Their goal was to understand the U.S. perspective on this topic and what companies are doing to proactively address it.  Keep your eye out as we await the screening of this on NHK World and will share it when it is available.




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Go Red for Women Luncheon in Support of SterlingRisk Insurance  

Keith Frank, Esq. and Christine Wittneben, of SilvermanAcampora LLP, together with their colleague, Rita Distefano, of Portnoy, Messinger, Pearl & Associates, Inc,. support their friends at SterlingRisk Insurance who were honored at the American Heart Associations’ Long Island Go Red for Women Luncheon. Congratulations SterlingRisk!

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You Can’t Say That! Or Can You? How To Handle Political Discussions In The Workplace

Most people will agree talking politics at a dinner party can certainly ruin a dinner party.  As we know political conversations can be disruptive to even the closest friend or family relationships and this is a good reason to avoid these conversations.  Similarly, politics can fracture and divide a workplace creating discord among coworkers who need to rely on one another to perform their jobs effectively.  A casual political discussion can escalate into a shouting match and possibly lead to employees passing judgment of others’ political beliefs and opinions.  Employers should understand that as professionals, neutrality of opinions must be a key strategy to keep politics out of the workplace in order to preserve employee retention, client acquisition, and revenue generation.

Here at PMP, we understand politics is a sore subject that can cause derailing effects to a workplace.  That is why we have created some helpful tips you can adopt to keep political disagreements out of the workplace without running afoul of the law.

Create a “politics-free” code of behavior and communicate the policy to all of your employees:

A provision in an employee handbook detailing a code of behavior can help employees understand what behavior is and is not appropriate for the workplace.  Creating a section in the handbook devoted to politics will eliminate any uncertainty about what the company deems to be acceptable political discourse.  This policy should be formalized in writing and employers should direct managers and supervisors to review it with their direct reports.  What employers must recognize and plan for is that short of an outright ban on non-work talk during working hours, there is nothing they can do to stop political speech.  An employer may not ban non-harassing and non-discriminatory political discussion without also banning discussion of other non-work topics.  Employers must realize a complete ban on non-work talk would be impossible to implement and enforce.  Therefore, employers should make clear political conversations in the workplace can lead to tense and precarious relationships among coworkers, and employees must understand that the stability of the workplace and the company hinges on their acceptance and adherence to the code of behavior.

Target employee disruptions instead of politics:

Even if the company’s handbook contains a strong policy about political talk, these policies will be ineffective if they are not widely known and enforced.  Business owners should ask their supervisors to be vigilant in enforcing the company’s code of behavior governing political discussion and speak with employees who are being too vocal and demonstrative about their political leanings.  Managers and supervisors must be proactive and set a precedent of adherence to the code of behavior by speaking to employees who are being “too open” about their personal political beliefs.

Additionally, it is just as important for managers to know how to conduct themselves as it is for workers.  Employers should instruct their managers and supervisors how to handle a situation where a political discussion is getting heated.  Instead of the manager inserting his or her political opinion and further instigating the political discussion, the manager should stop the conversation by telling the employees they can finish their conversation at another time outside of the workplace.

Be cautious of implicating any protected classes under federal law and protected rights under the National Labor Relations Act:

Federal law does not inherently protect political speech.  However, as a result of the wide range of political issues that often involve race, religion, and sexual orientation, political discussions and disagreements will often touch on these protected categories.  If an employer prohibits a member of a protected class from discussing an issue relevant to them personally this could run afoul of discrimination laws.  .  Employers must enforce and apply the code of behavior equally among all protected classes.  For example, an employer may be subject to a discrimination claim if the employer fires a female employee who supported Trump but not a male employee who did the same.

Similarly, the National Labor Relations Act (NLRA) does not protect political discussion.  Employers must be cognizant of the National Labor Relations Board (NLRB) and must careful not to infringe on rights protected under Section 7 of the NLRA when drafting policies to avoid issues with political speech.

Be sensitive to the potential volatility of the situation:

As a business owner, you should lead by example and demonstrate respect for everyone’s point of view regardless if it is extremely different from your own.  Remember that diversity of opinions in the workplace is a good thing and the main goal is to maintain productivity without allowing political disagreements to undermine your company’s effectiveness and cohesiveness.  In the context of the particular political climate we find ourselves in today, you must realize the importance of keeping politics outside the workplace, because politicians will come and go but your business must survive.

For further discussion or questions, PMP is available to help your business navigate how to keep politics out of your workplace.

Article Prepared By:

Keith Frank, SilvermanAcampora LLP

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Protect Yourself! A Quick Guide To Successful Workplace Investigations

Amid the almost daily media storm on sexual harassment and misconduct in the workplace, employers should take conscious steps to either amend or put in place a comprehensive plan on conducting workplace investigations involving employee misconduct.  As any internal employee complaint of harassment and/or misconduct could one day result in a lawsuit, investigations should be conducted as though its results may one day be an exhibit in a court proceeding.

So, if not now, then when will you ensure your business has an effective procedure to conduct workplace investigations?  Here are some key tips to conducting an internal workplace investigation that can protect your company’s finances and reputation.

  1. Choose the Right Investigatory Team:

Employers can choose to conduct an internal investigation or bring in an outside investigator.  The right choice is fact-sensitive and depends on a multitude of factors.  It might be best to rely on an outside investigator if the complaint is serious.  An employer might also want to bring in an outside investigator if there are specific fact-based allegations that could impose potential legal liability on the business, or if the complaint names an upper level or executive level employee.  Conversely, if the complaint is more routine in nature or includes a lower level employee, an internal investigator may be the right choice for your business.

The investigator must be objective and his/her investigatory integrity must be above reproach and cannot be impeached if the complaint ultimately turns into a lawsuit.

  1. Develop a Plan:

It is important to create a plan with a clearly defined purpose and scope to ensure a thorough and on point investigation.  A well thought-out plan will make sure nothing is overlooked throughout the investigatory process.  A good investigation will be able to answer the following questions:

  • Who will investigate?
  • What is being investigated?
  • Who needs to be interviewed?
  • What evidence should be gathered?
  1. Keep it Confidential:

The employer must take precautions to the best of its ability to protect the confidentiality of the employee.  It should be explained to the complaining party and any other individual involved in the investigation that all information gathered will be kept confidential to the extent possible for a thorough investigation.  By maintaining confidentiality, it is more likely parties will cooperate and remain truthful.

    4.  Act Swiftly:

A thorough and complete investigation can lead to resolution of an employee’s complaint in-house and prevent a lawsuit; however, if that complaint does result in a lawsuit, the quality of the investigation could be dispositive of whether the case turns out in the employer’s favor.  Once a complaint is lodged there should be no delay in initiating an investigation. An employer wants to be able to show that it swiftly took steps to investigate the complaint and that it did not waste time responding to the complaint.  Allow for an adequate period of time to develop an investigative plan, and once developed, the investigation should proceed with all due haste.

  1. Remain Objective and Cautious:

Employers should not take the allegations in a complaint at face value and seek out all sides of the story.  Even if the language in the complaint   includes buzz words that could trigger legal liability such as “harassment”, if true, a closer look at the complaint may very well reveal a benign behavior.  On the other hand, mild language can conceal the worst possible type of harassment. So employers should remain skeptical of the language used in complaints.

It is important to be sure that investigators are mindful of the choice of words chosen in their questions and reports.  Use neutral words such as “conduct” or “behavior” in order to avoid mislabeling an aggressor’s behavior or the victim’s recollection.  The investigator must always be vigilant to ask straightforward questions, act as only a fact-finder, and always remain respectful.

  1. Maintain a Record:

An employer should always handle workplace investigations with the assumption that the complaint will turn into a lawsuit.  Therefore, a clear and accurate report should be created to document every step of the investigation.  A final report of the investigation will summarize the following: the (1) incident investigated; (2) parties involved; (3) key factual and credibility findings; (4) employer policies or guidelines and their applicability to the investigation; (5) specific conclusions; (6) any issues that could not be resolved and the reasons for the lack of resolution; and, (7) any actions the employer has taken as a result of the complaint and investigation. Ultimately, the report will insure that if the investigation were to be reviewed, a person reviewing the report would likely conclude that the employer responded swiftly and appropriately, took the situation seriously, and had a justified reason for any actions taken as a result or during the investigation.

An employer is likely to quell a complainant’s urge to bring a lawsuit if it can demonstrate that a thorough investigation was conducted, a record was made that includes the contents of the complaint and investigation, and the employer has taken steps to resolve the issues in the complaint.


Article Prepared By:

Mark B. Portnoy, Portnoy, Messinger, Pearl & Associates, Inc.

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