I confess, I’m a Seinfeld junkie. I’ve watched every episode multiple times and literally love every single one—even the finale (I know, I know, I’m in the vast minority, but I’m committed, you could at least give me that). To this day, I watch Seinfeld’s re-runs over and over again, which I’m sure makes me cute in a geeky, boy-next-door kind of way, at least that’s what I tell myself. My wife just rolls her eyes and continues Facebooking, Tweeting, Instagramming, Pinteresting, Ashley Madisoning (actual users note recent security breach and structure assets accordingly), or whatever other social networking it is she does during my near daily half hour of “Ed time.” But irrespective of Seinfeld’s purported outdated-ness (likely not a word, but you’re smart, you understand), the fashions, Jerry’s updating (dating someone much hotter than you), or the fact that it is primarily intended for comedic purposes, employers can glean valuable lessons from Seinfeld if they watch closely. 
In Seinfeld episode number 140 (“The Fatigues”), Elaine, serving as interim company president while her boss is in Burma, is all set to can an employee for poor performance. Prior to meeting the employee, Elaine seems almost giddy to figuratively drop the guillotine on the unsuspecting employee. But once Elaine confronts the employee in person, Elaine can’t bring herself to do the deed, likely due to the fact that the employee is wearing fatigues, looks deranged, and has a spooky, guttural voice. Rather than deliver the news, Elaine promotes the employee from a mailroom position to a copywriter position.
Once in the copywriter position, the employee does such a poor job that Elaine decides to:
(A) counsel him;
(B) put him on a performance improvement plan;
(C) demote him;
(D) terminate him; or
(E) promote him.
While Elaine should have considered options (A) through (D), as any fellow Seinfeld-ian (I make up words like they’re “bodily functions”—also a Seinfeld reference for the Seinfeld-initiated) knows, Elaine promotes the ill-performing employee. Elaine’s promotion backfires, however, when the other key employees resign leaving Elaine and Corporal Fatigues to run the catalog business.
So what’s the deal with performance evaluations?
While this situation may seem like something that could never happen in your business (because yes I’m sure all of your businesses are perfectly run and that’s why employment lawyers are so busy right?), the cold hard fact is that supervisors routinely have problems candidly evaluating the employees under their charge. While I understand that it is very difficult to deliver bad news to your employees about their performance issues (unless you’re sadistic or an attorney), trust me it’s far more difficult to endure the attorneys’ fees and costs you’ll incur defending an employee discrimination claim from an employee that you frankly treated way better than you should have and who was rightly terminated for poor performance (even if the reviews don’t reflect it).
I’ve seen and heard it so many times:
Employer: Ed, Employee X (we’ll call him George) sucked. George was totally useless, everyone knew it, he slept with the cleaning service girl, so we had to terminate him.
My response: That’s fantastic! I’m sure George’s reviews will reflect his poor performance. Please send them to me.
[Performance evaluations sent. Ed’s office pens are snapped as Ed notes that George’s reviews reflect that George consistently met or exceeded expectations. *Sigh.*]
Then, there’s always the awkward attorney-client conversation, “If George was so bad, why don’t the reviews reflect it?” I normally approach this conversation in somewhat delicate fashion (as I’m diplomatic like that), but you get the picture. It’s not an easy conversation. The employer’s answer is virtually always the same, it’s some species of: I didn’t want to hurt George’s feelings; I didn’t want to jeopardize George’s career, family, livelihood, etc; I spoke with George about the issues but didn’t want to put it in his evaluation or in his file.
Serenity now, insanity later (so make evaluations accurate now, no matter how uncomfortable it is)
This is the part where I tell you nice guys (and girls) finish last. Plaintiffs’ lawyers know it’s human nature to give reviews that are more favorable than the employee’s actual work product. Plaintiffs’ lawyers use these evaluations like a freshly sharpened spear to kill the employer’s defenses. Plaintiffs’ lawyers rely upon the inflated reviews to show what a wonderful employee George was and that his termination could only have resulted from the decisionmaker’s discriminatory views on age, gender, race, national origin, disability, whistleblowers, or “low talkers” (take your pick). Guess whose head winds up on top of the spear? Not George’s head—the bad employee, the bad boyfriend, the bad son, the bad tipper. You guessed it, the decisionmaker’s head, along with a noticeable dent in the employer’s bank account.
The moral of the story, when it’s accurate, supervisors need to be brutally (and yes, I mean brutally) honest with underperforming employees. That means:
- Telling underperforming employees, it’s not me, it’s you (see, Seinfeld references represent at least 20% of my lexicon).
- Giving underperforming employees specific examples of their shortcomings. Counseling sessions, absent compelling circumstances, should be memorialized in writing, and the employee’s performance issues should be reflected in the employee’s evaluations.
- Documenting if an employee isn’t meeting expectations. Save the nice guy/girl routine for the company picnic or holiday party, maybe both. But at work, you need to be honest with your employees about their performance, even if that means ruffling a few feathers and potentially sacrificing what would otherwise be a good personal relationship.
- Contacting your friendly neighborhood FordHarrison lawyer and we’ll walk you through the situation.
By the way, as for the advice contained in this blog: it’s real, and it’s fantastic.
