Benefits and Compensation

PA Mistake #7—Gaming the System

[Go here for sins 1 to 6.]

Sin #7. Gaming the system

“John’s work is just OK, to be sure, but I need to give him a big raise to keep him, so he gets an ‘excellent.’”
“I can’t stand Sandy, but I can’t transfer him unless he has a high rating; let his next manager deal with him.”

This is gaming the system, giving inaccurate ratings for some reason outside the performance appraisal realm. As we have mentioned, this is always going to lead to trouble, and probably very expensive trouble.

Sin #8. Failure to take performance appraisal seriously

“I’ve got real work to do, and here’s this stack of appraisals I have to get through.”
Got to get these performance appraisals in. Good … good … good …good. Done.”

One would hope that managers would look at the appraisal process as an important opportunity to improve the performance of the department, to help employees to develop, and to give credit where it is due. But some view appraisals as an onerous chore. That’s unfortunate. Not only will that manager lose the opportunity to improve performance and recognize hard work, but he or she is likely setting up a situation that an eager lawyer will jump on.


Wage/hour #1 lawsuit generator. How to react? Start on June 10, 2014 with BLR’s new, interactive webinar How to Avoid Emerging Wage & Hour Risks: Exempt or Non-Exempt, Contractor Liability & Minimum Wage Hikes. Learn More


Sin #9. Failure to be consistent across department and organization or playing favorites

“Jim’s performance isn’t that great, but he’s my kind of guy.”
“Judy is a great worker, but her husband has a good job; I think the higher rating goes to Steve even though his work isn’t as good as hers.”
“Jamie is clearly the better producer, but if Tracy doesn’t get the high rating, Tracy will whine and complain; Jamie will just take it, so Tracy gets the high rating.”

Within the department or across the organization, if ratings are inconsistent, there are going to be complaints, morale problems, and eventually lawsuits. If the inconsistency is blatant, for example, if members of a protected class are consistently rated lower, that’s setting up for a lawsuit, especially if the above-mentioned sins of vague goals and “dishonest” evaluations are present.

Sin #10. Failure to document carefully

“They want me to write this stuff down, but I’m busy, and I’ll remember it.”

If there is ever a court case or charge, remember that it will likely be 2 to 5 years after the event that proceedings occur. Without clear contemporaneous documentation, even if all the players are still employed at your organization, it will be difficult to remember what exactly was said, and it will be very difficult to convince a jury.

OK, that’s our 10 sins of performance appraisal. What about the other most common sins—wage and hour?

Wage and hour compliance is the hottest HR issue to watch heading into the summer of 2014 for several major reasons:

  • Labor Secretary Tom Perez supports President Obama’s push to close a “loophole” in FLSA regs that allows you to treat some employees as exempt from overtime because they are managers. The practical impact for HR? The DOL likely will propose game-changing rules that will further limit who is exempt.
  • Misclassifying employees as independent contractors is under increased scrutiny at the Wage and Hour Division (WHD) and many state labor departments.
  • Minimum wage is in the spotlight over allegations that employee rights were violated by the producer of the TV show Jersey Shore.
  • Raising the federal minimum wage to $10.10 per hour could have a significant impact on overtime obligations.

Clearly, staying on top of the push to overhaul FLSA regulations is critical to maintaining legally compliant pay practices at your workplace.

Join us on June 10, when a seasoned labor and employment attorney will explain the practical impact that the push to overhaul FLSA regulations will likely have on your organization, providing practical tips on what you should do right now to prepare for radically new overtime exemption rules and insight into how you can minimize your risk of being held liable for wage and hour violations by the WHD or state labor departments.

How to figure out how to respond? Fortunately there’s timely help in the form of BLR’s new webinar— How to Avoid Emerging Wage & Hour Risks: Exempt or Non-Exempt, Contractor Liability & Minimum Wage Hikes. On June 10, in just 90 minutes, you’ll learn everything you need to know.

Register today for this interactive webinar.


Attorneys are circling—looking for your (expensive) wage/hour mistakes. Join us for an interactive webinar on How to Avoid Emerging Wage & Hour Risks: Exempt or Non-Exempt, Contractor Liability & Minimum Wage Hikes. Earn 1.5 hours in HRCI Recertification Credit. Register Now or Find out more.


Participate in this interactive webinar, and you’ll learn:

  • What revamped DOL regulations regarding overtime pay and the white-collar exemptions could mean for how you evaluate and classify exempt jobs
  • The most likely job classifications/duties that could spark scrutiny by the DOL and the courts—now and going forward—for overtime exemption misclassifications
  • Practical tips for how to tell if your exemption classifications are in need of an overhaul under current FLSA regulations
  • The legal risks of designating employees as independent contractors and recent cases illustrating the key trouble spots that could lead to costly lawsuits and settlements
  • How to evaluate and reduce liability related to your payroll policies, including best practices for ramping up audits of overtime exemption and independent contractor classifications

And much more—Join us for this satisfaction-guaranteed event!

Register now for this event risk-free.
Find out more.

Tuesday, June 10, 2014
1:30 p.m. to 3:00 p.m. (Eastern)
12:30 p.m. to 2:00 p.m. (Central)
11:30 p.m. to 1:00 p.m. (Mountain)
10:30 a.m. to 12:00 p.m. (Pacific)

Approved for Recertification Credit

This program has been approved for 1.5 credit hours toward recertification through the Human Resource Certification Institute (HRCI).

Join us on June 10—you’ll get the in-depth How to Avoid Emerging Wage & Hour Risks: Exempt or Non-Exempt, Contractor Liability & Minimum Wage Hikes webinar AND you’ll get all of your particular questions answered by our experts.

Find out more

Train Your Entire Staff

As with all BLR/HRhero webinars:

  • Train all the staff you can fit around a conference phone.
  • You can get your (and their) specific phoned-in or emailed questions answered in Q&A sessions that follow each segment of the presentation.

Find out more

About Your Speaker

Attorney Jonathan Sterling, a shareholder in the Hartford, Connecticut, office of Carlton Fields Jorden Burt, handles employment law, concentrating on the defense of organizations, municipalities, and individuals against claims of discrimination, harassment and retaliation. Mr. Sterling has obtained numerous dismissals of administrative complaints from the Connecticut Commission on Human Rights and Opportunities (CHRO), and has defended employers in CHRO administrative fact-finding conferences. He has drafted and argued dispositive motions before state and federal courts. He has also defended employers before state and federal courts and administrative agencies in cases involving FLSA, FMLA, ERISA, freedom of expression, workers’ compensation retaliation and common law claims.

He also has performed extensive consulting and compliance work for employers, including reviewing and drafting employee handbooks, employment agreements, noncompete agreements, and arbitration agreements. His compliance work has been wide-ranging; from WARN Act compliance to wage and hour issues. Sterling also conducts sexual harassment training for employers.

His significant experience litigating intellectual property matters, including disputes related to trademarks, with a particular focus on domain name disputes. Sterling also advises clients regarding development of technology usage policies, such as for social media, e-mail and Internet, that are tailored to the client’s business environment. Sterling belongs to the Employers Counsel Network and is a frequent contributor to the Connecticut Employment Law Letter and 50 Employment Laws in 50 States.

Find out more about the How to Avoid Emerging Wage & Hour Risks: Exempt or Non-Exempt, Contractor Liability & Minimum Wage Hikes webinar.