Appraisals: Not Legally Required, But Legally Recommended

Don’t tell the CEO who wants to terminate without documentation, "You can’t terminate." Say, "If there is a legitimate non-discriminatory reason for this termination, you can do it, but in the absence of documentation, there is substantial risk. I would prefer not to be married to this employee in lengthy litigation. Maybe if we do this in two or three steps, we can avoid that."

"Once they see there’s a legitimate reason for your concern, CEO‘s will make a logical decision," Segal says.

Segal, a partner in the Philadelphia office of law firm Duane Morris, delivered his suggestions at a recent Society for Human Resource Management Annual Convention and Exhibition.

Why are appraisals or other pre-termination notice is important?

Even if employees are at-will, Segal says, appraisals or other pre-termination notice are important for four reasons:

• Fairness to the employee (and by the way, all the other employees are watching to see how they’ll be treated)
• May result in employee improving, thus saving the cost to the employer of replace the employee
• Decreases the likelihood of a claim because the employee won’t be surprised
• Decreases the employer’s exposure in litigation because employee was on notice, and given a chance to improve

Usually there’s a legitimate, sound business rationale for a termination, and managers arrive at the decision with a "pure heart," Segal says. So why are there so many claims? There are four general reasons for these claims, he says.

• Absence of adequate pre-termination notice (for instance, appraisals didn’t make employees aware of shortcomings, or they believe that they weren’t given a reasonable chance to succeed)
• Language in disciplinary documentation was offensive or gave the wrong signal (for example, You didn’t try hard enough.")
• Manner of implementation of the discipline was offensive (for example, the termination was done by email)
• What was said or done in the termination meeting made them feel embarrassed or mistreated (for example, the meeting was in public, or the employee was marched out of the building in front of coworkers)

What are the Most Common Appraisal/Discipline Mistakes?

Segal outlines the errors that he sees as most often putting employers in a weak position:

1. Using labels as opposed to describing behaviors

For example, "poor attitude, poor judgment, poor performance." These are nebulous terms. Give examples of specific behaviors.

2. Employing adjectives that sound like “proxies” for stereotypes

For example, "too emotional" for gender, or "rigid or resistant" for age. If a person won’t switch from a manual to a computer system, don’t call it "rigid or resistant," says Segal, call it "insubordination."

3. Focusing on intent rather than outcome

You have two employees, Matt and Martha, says Segal. Matt loves your organization, but he cares so much that he obsesses over everything, and accomplishes little.

Martha couldn’t care less, and hates the place, but hits 170 percent of her goal.
So you say to Matt, "We lose money with every breath you take, but we like your attitude, here’s your bonus." And you say to Martha, "You don’t care, your attitude is bad, no bonus for you."

"This is focusing on intent as opposed to outcome," says Segal, "and in many instances, intent is irrelevant. You don’t really care how hard someone tries to be on time, you care if they are on time."

4. Using absolutes

Using absolutes, you always end up with an untrue statement, a lie to your employee’s lawyer. Here’s how it goes, says Segal:

You said she never meets a deadline, is that true?
Well, I guess she did one time. I think of as an exception.
So you’re admitting that your statement is not true?
Well, not exactly true.
What’s the difference between true and not exactly true? That’s false, is it not?
Did you do it to just this employee?
No, I do it to all employees.
Oh so you lie all the time? Does that include now?

So avoid absolutes, says Segal. If there is one exception, the manager suffers a credibility loss. It’s better to say "on a number of occasions …" or "too often you ….."

Don’t trust national salary data when you can have data specifically for your state and region. Find state data on hundreds of jobs in BLR‘s famed Employee Compensation in [Your State] program.

5. Hedging too much

Segal often reads documentation that says "It appears" or "it would seem." This is heard as "you don’t know."

For example: "It would appear that David doesn’t know how to use the new computer system." Drill down, says Segal. "I don’t know whether or not you understand the new computer system, but I do know you made 11 mistakes."

6. Including too many details — overkill

What about the employee who does lots of little things that get under your skin, but no “grand slam,” no one big thing that justifies termination? "If list all the things, you look petty," says Segal. "Tuesday, you rolled your eyes, Wednesday you closed the door with a slight slam, etc."

However, if don’t put them all in, someone will say, that’s all?

It’s fairly simple to deal with this, Segal says. Whenever there is a series of things and you don’t want to put all of them in, say in your memo, "There have been a number of problems with your communications with clients; I’m going to give you three of the most recent, (or three of the most serious)."

Or, "You have been negative a number of times in meetings.  It’s not productive to go through every meeting, so I’ll give examples only from the last meeting."

"Now you have operationalized the issue to something broader and have given examples," Segal says.

What are your competitors offering workers these days? Check your state’s edition of BLR‘s exclusive Employee Compensation in [Your State] program to find out. Try it at no cost or risk.

7. Failing to make clear the consequences of not making adequate improvement (or failing to define adequate improvement). Always state what the next step will be, Segal says, and define adequate improvement. Be sure to require substantial, sustained, improvement. Otherwise, the employee will improve a little bit for one day, and say, "But I did improve."

8. Failing to state that the “final warning” is in fact the final warning. Here’s the suggested wording to use, quips Segal: "This is your final warning."

In tomorrow’s Advisor, more of Segal’s things not to write in employee notices, plus an introduction to the trusted source for comp solutions.