Skilled At Work



How to terminate an underperforming employee? 

I have worked with this individual for almost 17 months. I joined as a director and was very happy to be apart of a company. I manage a team of 7 analysts. She is the most tenured person on the team, but she has made constant errors and is the least coachable individual. I have been having conversations with her for over 8 months now and she still continues to fail. I have had 5 serious performance conversations over the past 6 months with her and she has no will or ability to handle change.

She constantly tells me I am disrespectful and that I am demanding too much, but she is unable to handle the basic premises of the job.

We work in finance and she messes up all of the accrual files month over month.

I was about to PIP her but then she took an FMLA leave, now when she returns, I know I may have to restart the entire PIP process. She never addressed any serious medical conditions to prevent her from performing her responsibilities so I am a little skeptical about the timing of the leave.

Any advice on how to proceed with performance management after FMLA leave? I hope she can improve but the constant defensive & combative nature of her has put other teammates on edge as well.


Jobadvisor

Below is guidance framed for managers, not legal advice. Because you are in California and dealing with FMLA, be extra cautious and involve HR at every step — CA employment law is strict and very employee-protective.

Key Principles You Must Follow (Especially in CA + FMLA)

1. You cannot take any adverse action because of the FMLA leave.

That includes:

  • Termination

  • Disciplinary action

  • Restarting a performance plan because of leave

  • Evaluating her negatively due to the leave’s timing

Even if the timing looks suspicious, your skepticism cannot factor into any management decision.

2. You can continue performance management based on documented issues that predate FMLA.

FMLA does not give immunity.
If you had a documented performance trajectory before she left, you resume right where you left off.

  • If the PIP was already drafted or planned → you may still launch it upon her return.

  • You do not need to restart the entire performance process from scratch unless your company’s own HR policies require it.

This is why HR must be your partner. They can confirm whether the internal process resets or pauses.

3. Ensure you are extremely clean with documentation.

If termination eventually happens, you want the file to show:

  • Clear duties/expectations

  • Specific, dated examples of failures

  • Documented coaching attempts

  • Written feedback

  • Employee acknowledgment (email or signature)

  • No references to FMLA

  • Consistency with how you would treat any employee with similar issues

If anything is unclear, HR will flag it as a potential retaliation issue — and in California, that can get expensive quickly.

4. When she returns from FMLA, schedule a neutral “return-to-work” meeting.

This meeting should include HR and should not mention her FMLA leave except to welcome her back and confirm she is able to perform the essential functions of the role.

Suggested structure:

  1. “Welcome back.”

  2. “Here’s what we were working on before you left.”

  3. “Here’s where your performance management cycle was.”

  4. “We’ll resume expectations from here.”

  5. “HR is here to support both of us.”

This avoids the perception that her leave caused you to escalate anything.

5. Launch the PIP immediately upon return if HR approves it.

If HR agrees the documentation is strong:

  • Begin the PIP as originally planned.

  • Keep the requirements clear, measurable, and achievable.

  • Make progress checkpoints frequent (weekly/biweekly).

  • Document every meeting.

If she becomes combative, simply document factual statements and end the meeting:

“I understand you disagree; here are the expectations we need to meet. I’ll send a written summary.”

Combative behavior during a PIP can become an additional grounds for termination if it affects team operations.

6. You are not required to accept attitude issues.

California protects against discrimination and retaliation — not against termination for:

  • Poor performance

  • Failure to meet documented expectations

  • Disruptive behavior

  • Insubordination

  • Negative impact on team environment

As long as your documentation is solid and her FMLA is irrelevant to the decision, termination is lawful.

7. Don’t delay unnecessarily.

The longer the issues continue, the harder HR’s job becomes and the greater the reputational/team impact.

You are not doing anything wrong by holding her to the same performance standard as others — but you must ensure:

  • The standards are truly consistent

  • The documentation is strong

  • HR is involved at every step

  • Nothing you say implies the leave influenced your decisions

Recommended concrete next steps

  1. Meet with HR and present:

    • Your documented performance history

    • Coaching notes

    • Emails

    • Examples of errors

    • Draft PIP

    • Timeline

    • Behavior/attitude issues

  2. HR signs off on your PIP plan.

  3. Hold the return-to-work meeting with HR present.

  4. Begin the PIP immediately after her first week back (HR may suggest a few days buffer).

  5. Conduct weekly documented check-ins.

  6. If she succeeds → great. If not → termination for cause (with HR approval).

Final Note

You’re clearly frustrated, and reasonably so — but the safest path forward is to treat this clinically, procedurally, and with HR partnership. California law will punish anything that looks like retaliation, even if unintended.


Interim promotion during hiring freeze?

Today my friend in payroll said a hiring freeze starts tomorrow til the new year. I didn’t want to pry to ask about my internal promotion chances with a hiring freeze but does that usually stop ones in motion? We also have our holiday party Dec 10. There are so many signs that it’s coming and I’m scared to ask. It’s been just about 8 weeks since my boss left Oct 3. I have been doing excellent and beyond expectations. Initially I was told I wasn’t what they wanted but they gave me a shot anyways. My boss really hid me because she was so incompetent. She finally left after a gift card scam.


Jobadvisor

Here’s how hiring freezes usually work — especially in U.S. companies and in Texas, where employment law is more employer-friendly:

✅ 1. Most hiring freezes do not block internal promotions already in motion

In practice:

  • Backfill promotions for vacated roles are often still approved.

  • Internal moves are usually exempt, because they don’t add headcount or cost the company extra benefit positions.

  • Leadership typically only blocks:

    • New net-new roles

    • External hiring

    • Additions that increase payroll

If you’ve already been doing the job for 8 weeks, you are effectively “backfill headcount,” and companies usually want to formalize that.

✅ 2. Timing around a freeze does not mean your promotion is dead

Freeze starting “tomorrow” does not necessarily affect:

  • Approvals already submitted

  • Roles already budgeted

  • Promotions tied to an existing vacancy

Many companies grandfather anything already moving through the chain.

If leadership intends to promote you, they can easily make the effective date Jan 1 and announce it now.

✅ 3. Holiday party timing is irrelevant

Holiday parties rarely signal anything about promotions. Promotions are usually aligned with:

  • Fiscal year budgets

  • HR cadence

  • Performance cycles

  • Leadership availability

Many teams quietly finalize decisions before the new year so compensation can align with Q1 payroll.

✅ 4. Hiring freeze ≠ promotion freeze

These are different things:

Hiring freeze:

Stops adding new employees.

Promotion freeze:

Stops increasing salary or title changes for existing employees.

They are usually not the same.

Unless you hear the words “compensation freeze” or “promotion freeze,” assume promotions are still on the table.

✅ 5. Your situation actually leans in favor of promotion

You’re already:

  • Doing the job

  • Filling a vacancy

  • Performing above expectations

  • Trusted after your old boss left in chaos

Companies hate leaving key functional roles unmanned for months.

And a gift-card scam exit from the previous manager? They will want stability fast.

✅ 6. How to check without looking anxious or risky

Here’s a low-stress way to ask:

“Since the hiring freeze starts tomorrow, I just want to confirm whether it affects internal backfills. I’m fully committed to supporting the team either way, but I want to ensure I’m aligned with expectations for this role.”

This is calm, professional, and doesn’t pressure anyone.

⭐ Bottom Line

Hiring freezes rarely stop internal promotions for someone already doing the job.
You are in the strongest possible position: performing well, covering a vacancy, proving capability.