Are You Hiring Toxic Employees?

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Know now – before they start

By Chere B. Estrin

“…..a worker that engages in behavior that is harmful to an organization, including either its property or people.”

Definition from a 2015 research study by Michael Housman and Dylan Minor at the Harvard Business School.

You’ve certainly done it at least once – hired the Toxic Employee. You were sure they were “Ms. or Mr. Best Candidate I Can Ever Choose”. They aced every question. They were far superior to any of the other candidates: polished, poised and personable. Then, they started the job. Everything was hunky-dory the first three months. Then, uh, oh. The Monster in the window office on the 33^rd floor appears out of nowhere. Yep, a Toxic Employee.

How the heck did this happen? You checked professional references. You looked them up on social media. You made sure they interviewed everyone: partners, associates, paralegals, legal professionals, facilities staff. Shoot, you would even have had them interview with the cleaning crew if only they were there during the day. And still, up pops the Toxic Employee.

I know. Believe me! I have had to let them go. Me, the so-called ‘Master of Interviewing’!! (OK, that may be an exaggeration but geez, I am in the staffing business.) In the past, I told myself that the candidate was pretty good hiding who they really were. Until one day, I woke up and asked myself, “Is It possible I am not screening correctly?” God forbid. 25 years of recruiting right out the window.

Hiring a Toxic Employee is more costly and harmful than you may think. It doesn’t just hurt the performance of that one employee, but also those around them. Staff is often confused by the destructive behavior and negative emotional reactions of a Toxic Employee; outbursts of anger and rage that clearly seem to be an over exaggerated display of emotion (overt) relative to the situation. 

A covert Toxic Employee may quietly, with a smile, undermine others (keeping their thoughts and feelings to themselves), yet still act out with destructive behaviors. Both overt and covert Toxic Employees tend to act defensively to protect themselves against a perceived threat to their self-esteem. Most reasonable people just would not react this way. Peers, colleagues, managers, and clients prefer to avoid them at all costs since being around them leads to so much discomfort. Mistakes are made. Accidents happen. A star performer leaves the organization. Worse, as the word gets out, potentially good job candidates may not want to work for the firm. As recruiters, unfortunately, we see this happening more than we would like. We present the firm, and the response is a resounding, “NO.”

A study of Toxic Employees conducted by Harvard Business School found 78% of employees said their commitment to their organization declined in the face of toxic behavior. The study reviewed 58,542 customer service employees from multiple companies and found that 1 in 20 were fired for toxic behavior within their first year of employment. Considering that Toxic Employees can cost you some of your best workers, the study’s experts estimated that hiring a single Toxic Employee costs about $12,500.

The study identified three prominent risk factors for toxic behavior: Overconfidence, self-regarding, rule orientation.

Many firms make the mistake of designing a selection process that attracts people who are more self-regarding by:

• Including self-centered terms like “rockstar” or “superstar” in the job posting.
• Promoting perks like games, incentives, and prizes for top performers.
• Selling candidates on advancement opportunities, rather than the job itself.

Fix this issue by emphasizing teamwork and firm culture. Here are just a few suggestions: 

• Highlight culture on your website.
• Use team-focused descriptions in job postings.
• Screen candidates for culture fit.

Rule Oriented: Job applicants in the study were asked to decide which two statements applied to them.

1. I believe rules are made to be followed.
2. Sometimes it’s necessary to break the rules to accomplish something.

The surprising twist is people who chose “I believe rules are made to be followed” were 25 percent more likely to be fired for toxic behavior. It seems that someone stating they are a rule-abider doesn’t necessarily mean they’ll abide.

Managers with a lot of Toxic Employees tend to be overly focused on rules.

• Attendance policies
• Dress codes
• Conduct policies, such as the use of personal cell phones

The solution to this challenge can be counterintuitive. Competent leaders spend less time on rules (what not to do), and more time reinforcing positive behaviors (what to do).

For example, rather than reviewing the attendance policy with a candidate, you might emphasize why an employee might want to come to work every day. Perhaps the firm offers fun and challenging work, has a compelling vision, and creates an environment where coworkers genuinely trust and support each other.

Overconfidence: 

These are employees who believe they’re awesome, even when they’re not. You know who they are.  Study participants were asked to estimate their level of computer skills. The applicants were later given a skill test.

A whopping 34 percent were overconfident, with the skill test revealing they were less skillful than claimed. These employees were 15 percent more likely to be terminated for toxic behavior than the rest.

The Toxic Employee is generally not aware of their negative impact. When they are, they may not even care. When provided feedback, they may react in either a passive or active destructive manner. They are likely to react negatively in a very defensive and confrontational way, and may even verbally attack, in an emotionally explosive manner, if they perceive they are being criticized, minimized, or marginalized. Often, they persecute others and play a victim role, complaining that they have been treated unfairly, harassed, or discriminated against. They then need to create a sense of control or power, so they seek assistance from a formal level of conflict intervention. For example:

“What do you mean? I’m the best Attorney Recruiter you have with hires already up by 20% this year, and better than anyone else on the team! What is wrong with YOU telling ME this? You should be talking to others on the team, not me! [Followed by a complaint to HR about being treated unfairly].

This all could have been avoided if only the Toxic Employee had been screened out in the interview. Is that possible? Essentially, yes. Will you bat 100% each time? Probably not. (They can be pretty sneaky.) Here are a few things to bear in mind:

• Checking references: Shocker! Means very little these days. 

Most law firms will only give name, rank and serial number, meaning dates of employment and whether the employee is eligible for rehire. That can mean nothing as some firms have a “no-rehire under any circumstances” policy. Further, law firms are deathly afraid of being sued, so they clamp down on the amount of information they will give. I ask you: do you believe for one moment that the reference referred by the candidate is going to say a lot of bad things? Try going to other references, perhaps to former employees.

Instead: Ask references about civility. Understanding how the candidate behaved in the past will help you assess whether they’ll be civilized when they come to work for you. Ask references for specific behavioral examples of the candidates’ characteristics that get at the heart of civility: “What’s it like working with him?” or “What could he improve on?”

Share the firm’s values and ask them to give examples of the candidate demonstrating those values. Did the candidate’s behavior ever reflect negatively on the firm?

• A call, not an email, is more likely to reveal any specific behavioral problems. Further, law firms are policy driven not to put anything in writing. Seasoned recruiters will tell you that the most useful data they get comes from follow-up questions, and mainly from the reference’s tone, demeanor, and pace — not necessarily their words. Listen very closely and follow up on hints of problems.
• Don’t just stick to the reference list — talk to your own network. Many times, attorneys know the candidate’s former employer and will simply pick up the phone. Quite often, they will get a true picture. 

• Did you ask for a writing sample? If so, how do you know that the candidate wrote the sample? Most candidates will not lie, really, they won’t. However, there are those that do. This problem can be compounded when you give the candidate a sample to write and bring back. There has been much debate as to whether this is “working” and whether they must be paid. Honestly. It gets harder and harder.
  
• Dates of employment: Don’t neglect to ask what month along with the year of employment as listed on the resume. It must occur to you at some point that 2021-2022 just might not be a full year. What if employment was November 2021 – February 2022? Four months vs. one year is quite a difference.

Don’t despair! I’ve researched some excellent pointers and questions you can use to flesh out potential Toxic Employees.

Throughout the interview process, be on the lookout for signs of civility. Asking the candidate how she managed a real situation in the past provides more valuable insight than hypothetical questions such as “How would you handle…” or “What would you do if…” Request examples of how their past behavior matches the values you’re looking for (which you also need to make explicit during the interview). Remember: the candidate comes rehearsed. Don’t just accept the first answer — ask for 2–3 examples.

While some of these questions sound like the same ole, same ole, many interviewers are not aware of what an appropriate answer is. Combine that with the fact that candidates today are extremely well coached and will give you rehearsed answers they gleaned from the internet. 

Consider using these interview questions:

• What about yourself would you like to improve most? How about a second thing? A third? (This is the old, “Tell me about your weaknesses”, a meaningless question as there isn’t any candidate from here to the Mississippi who doesn’t know how to flip this question). However, asking for more than one makes them think.
• Tell me about a time when you’ve had to deal with conflict at work. What did you do?
• What are some signals that you’re under too much stress?
• When did you fail? Describe how you dealt with it and learned from the experience.
• What kind of people do you find it most difficult to work with? Tell me about a time when you’ve found it difficult to work with someone and how you handled it.

Here are a few beyond the scope of routine and boring:

• Ask for four things the person liked least about his or her last (or current) firm. Asking for one thing is common. Asking for four pressures the person to reveal signs of toxicity.
• Have others do it for you. I can be fooled, and others can be fooled; but a whole team is very hard to fool. If you have team interviews, most of the time they will sniff out the Toxic Employee. 
• Find out if a candidate holds a grudge. It’s usually a personality pattern rather than the situation. Some people look beyond their differences while still being confident enough to voice their opinion. Anyone who mentions problems with other people is part of the problem. Anyone bad-mouthing their present or former firm is an “outta here, baby”.
• Deviate from the standard (boring) line of questioning. Move away from tiring interview questions people usually ask, and instead go for probing, unexpected questions. Anyone is prepared to answer, “What are your strengths?” but you’ll get a more honest, off-the-cuff response to something like “What lie do you tell often?” Really hear the response and tune in to nonverbal cues as well.
• Listen for “we” or “our”. An easy way to identify a bad fit is to listen for acknowledgement of team successes. If a candidate seems reluctant to credit co-workers, this could be a problem.

Of course, “toxicity” won’t be listed on a candidate’s resume. I wish it were. We sure would save a whole lot of money, turnover and angst, wouldn’t we? With the unemployment rate at an all-time low, law firms are facing tremendous competition for good candidates. That makes it tempting to avoid asking job candidates hard questions, and to settle for those who are likely to inject toxicity into your firm.  It’s important to avoid temptation at all costs—you’ll not only lose them in short order; you also risk losing good employees who simply don’t want to work under these circumstances. 

Do yourself and your firm a favor and be done with Toxic Employees coming on board.  Change the way you interview, check references differently and don’t overlook subtle hints that you are about to engage a Monster in the window office on the 33^rd floor.

About the Author

Chere Estrin has over 20 years of experience in the staffing arena, including executive positions in law firms, litigation support companies, and the legal staffing divisions of a $5billion publicly held corporation. She is CEO of Estrin Legal Staffing, a nationwide staffing organization. Ms. Estrin was founder of the Paralegal Knowledge Institute, an online CLE organization. She publishes the prestigious digital magazine, KNOW, the Magazine for Paralegals, and is the former Editor-in-Chief of Sue, the Magazine for Women Litigators. She is also the author of 10 books about legal careers for attorneys and legal professionals.

Ms. Estrin’s contributions to the legal industry have been significant, and she continues to play an active role in shaping the future of legal staffing and training. She writes the popular,

award-winning blog, The Estrin Report, and has been interviewed by CBS News along with many top publications, such as The Wall Street Journal, Fortune Magazine, Forbes.com, Los Angeles Times, Entrepreneur Magazine, Newsweek, The Chicago Tribune, The Daily Journal, ABA Journal, Above the Law, ALM, Law360 and many others. She has also been a speaker for many prestigious organizations and written hundreds of articles.

As the Co-Founding Member and President of the Organization of Legal Professionals (OLP), Ms. Estrin has guided the association’s development and implementation of the eDiscovery and Litigation Support certification exams (first in the country) along with Pearson Publications, a $7 billion corporation specializing in certification exams and educational publishing. She was also the Education Director designing, creating and executing online, live training programs with an on-call roster of over 500 instructors throughout the world. Currently, she provides webinars on legal career matters for LawPractice and Lawline, two of the largest attorney CLE online training organizations.
Ms. Estrin is a co-founding member of the International Practice Management Association (IPMA) and the Organization of Legal Professionals, composed of a prestigious Board of Governors inclusive of judges, an ABA President, and well-known attorneys. She is the recipient of the Los Angeles/Century City “Women of Achievement” award and recognized as One of the Top 50 Women in Los Angeles. Ms. Estrin has been writing The Estrin Report since 2005 and most recently launched her podcast, “Lawfully Employed”.

Reach out at: chere@estrinlegalstaffing.com or visit her website at www.EstrinLegalStaffing.com.