HR Management & Compliance

Make Performance Appraisals Work for You, Not for an Opposing Attorney!

Performance reviews can either hurt or help, says Attorney Susan G. Fentin. If an employee is fired for poor performance, but his or her appraisal was good, the appraisal can show pretext. However, when a poor appraisal is followed by a lack of improvement by the employee, your appraisal can demonstrate a legitimate (and nondiscriminatory) reason for termination.

Five Documents Guaranteed to Appear in Lawsuits

If there is a case, you can be sure that these five documents will be involved, says Fentin, a partner at the Springfield, Massachusetts, office of Skoler, Abbott & Presser, P.C. She offered her tips at BLR’s Advanced Employment Issues Symposium, held recently in Las Vegas.

  • Performance appraisals
  • Employee handbooks
  • Disciplinary documentation
  • Job descriptions
  • Responses to administrative charges or other sworn statements

Documentation is critical to defending a charge, says Fentin. It helps you cover the four basics:

  • You were fair;
  • You were consistent;
  • You acted for business-based reasons; and
  • You can document what you did.

For appraisal documentation to be effective, it must be:

  • Clear
  • Concise
  • Accurate
  • In simple language that even a jury could understand
  • Reflect measurable objectives, not subjective opinions

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Recommendations for Legally Sound Performance Appraisals

Fentin derives a set of recommendations from Current Legal Issues in Performance Appraisals, Stephen B. Malos, JD, PhD. The appraisal should:

  • Be objective rather than subjective
  • Be job-related or based on job analysis
  • Be based on behavior and impact on the company
  • Rate aspects within employee’s control
  • Should relate to specific functions, not to global assessments
  • Should be communicated to the employee

As far as procedures are concerned, the process should:

  • Be standardized and uniform for all employees in the job group
  • Be written and communicated
  • Give notice of deficiencies and path for improvement
  • Allow for employee input and rebuttal
  • Have written instructions for raters
  • Have a system to avoid discriminatory effects or abuse of system

Self-Evaluation Should Be Part of the Process

Fentin encourages employers to include a self-evaluation as part of the appraisal process:

  • Active participation gives the employee a “voice.”
  • Reading the employee’s response gives managers a broader perspective.
  • The self-evaluation highlights differences in perception between the manager and employee.
  • The exchange promotes more effective discussion in review.

Fentin suggests the following as examples of questions that will generate a meaningful self-review:

  • How do your responsibilities support the company’s strategic plan?
  • What do you consider your most important contributions and accomplishments during the review period?
  • What competencies (skills, knowledge, or perspective) have been most important in achieving those accomplishments?
  • What feedback have you received from coworkers and/or constituents?
  • How satisfied are you with your accomplishments during the review period?
  • What have you learned that can be applied in the future?
  • What do you need to do to further enhance your performance?

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Suggestions for Successful Performance Appraisal

Fentin offers several suggestions adapted from Legal Guidelines for Associations for Conducting Employee Evaluations and Performance Appraisals, by Maurice Baskin, a shareholder in the Washington, D.C., office of Littler Mendelsohn:

  • Develop an Appraisal Form that relates specifically to the employee’s job.
  • Develop a rating scale.
    • It is helpful to have ratings that reflect job responsibilities, not just numbers on a scale. For example, instead of rating “problem solving” on a scale from 1 to 5, develop a scale that runs from “Unable to solve problems unless given specific guidance” to “Frequently develops creative and original solutions to unexpected and unusual problems.”
    • Allow raters to answer “not observed” or “not applicable.”
  • Ensure against bias.
    • Train to avoid implicit bias.
    • Double-check for consistently low ratings of women, minorities, or stereotypical language.
    • Consider having two or more individuals review each employee.
  • Get the employee to agree on the job duties. This avoids later debates about whether expectations are reasonable.
  • Require the employee’s signature.
  • Allow for rebuttal or appeal. (Failure to appeal can speak volumes.)
  • Establish a schedule.
    • Strict adherence to the evaluation schedule is important.
    • Supervisors who fail to meet a schedule should be marked down in their own evaluation!
    • A supervisor who leaves or changes roles should be required to complete an evaluation before he or she moves.
  • Review evaluations for disparate impact.
  • Avoid exceptions to the system—inconsistency can be hugely detrimental.

In tomorrow’s Advisor, Fentin’s 10 most common mistakes in documenting employee performance, plus an introduction to Purchasing Power’s free best practices report, Money Smarts: Helping Employees Make the Grade.

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