As we approach the end of another year, some of you may be gearing up for the year-end performance evaluation season. Conducting proper performance evaluations can play a critical role in your organization’s ability to address issues with poor performing employees, as well as retain your good employees.
The purpose of this article is to provide some guidance to help you navigate through the performance evaluation process and to identify potential legal issues that could arise.
Address Issues That Need to Be Addressed
An important part of the evaluation process is that it gives the company the opportunity to highlight performance issues and address them before it’s too late. From a legal perspective, it’s critical that any performance issues are identified in the performance evaluation and documented.
Sometimes it’s difficult to properly evaluate an employee who is underperforming and even more difficult to have a face-to-face conversation with them about those issues. If you let a performance issue slide, however, it can become difficult to take the necessary steps later to deal with the performance issues.
For instance, if an employer decides to discipline or discharge an employee because of a performance issue, and if a subsequent lawsuit or grievance is filed, one of the important issues in the case will be to determine what the employee’s past performance evaluations say.
If your supervisor has neglected to document the same past performance issues in the evaluation, it makes it more difficult for you to have a solid defense for your disciplinary decision. In fact, if the employee’s performance evaluations don’t support that the employee is a poor performer, your employee can use your own performance evaluations against you to argue that your actual reason for disciplining or discharging them was an illegal reason.
By contrast, if your supervisor has properly documented the performance issues in the evaluation, it places you in a much better position.
First, it shows you have previously advised the employee about correcting the performance and that you have given them the opportunity to correct the behavior. In a lawsuit, the jury tends to like when you have been fair to the employee and giving them a chance to correct behavior is a good way to show fairness.
Also, if there is a history of documenting and warning the employee about the performance issue, it’s easier to show you had a legitimate reason for deciding to discipline or discharge them.
Be Objective
To the extent you can, your performance evaluations should focus on objective factors, such as production goals or some other type of hard number.
Objective factors help to remove the subjectivity that can be associated with performance evaluations. Subjective factors, based on the opinion of the evaluator, can be harder to defend or explain.
While it’s difficult to remove all subjectivity associated with a performance evaluation, the more objective you can make it, the better you will be able to defend the evaluation.
Documentation
You may have heard the expression: “If it’s not documented, it didn’t happen.” In all areas of employment law, this is a good rule of thumb to follow.
If there’s an issue with an employee’s performance, it needs to be documented in the performance evaluation. Verbal discussions of a performance issue, without any documentation regarding the discussions, simply isn’t a good practice.
In a lawsuit over a decision to discharge an employee over work performance issues, you don’t want to find yourself in the position of relying on a supervisor to testify about the times she verbally talked with the employee about the issue. If it’s important enough to talk with the employee about, it’s important enough to document the discussion.
If your supervisor doesn’t document the verbal discussions as they occur, they should certainly mention the prior verbal discussions in the employee’s yearly performance evaluation. It creates a record showing the supervisor talked with the employee before about the issue and creates a record that reminds the employee again about the issue.
Train Your Evaluators
Depending on the size of your organization, you could have multiple supervisors involved in evaluating employees. Because not everyone thinks the same way in evaluating employee performance, there’s a risk that each supervisor will evaluate their employees differently.
For instance, if you have a five-point scale, with one being the lowest score and five being the highest score, one supervisor may have a tendency to award the highest score while another may have a tendency to award a lower score. This creates the possibility of having inconsistent evaluations among your employees based on the same level of performance.
As a result, you may not obtain an accurate measure of how an employee is performing or whether any issues need to be addressed.
To address this potential dilemma, it’s important to provide some training to individuals who complete the performance evaluations. The training should provide some guidance on what the point scale means on the form and the company’s expectations for how that point scale is to be applied.
While it may not completely stop this dilemma from arising, some training will place the supervisors in a better position to understand how you want the employees to be evaluated and how the evaluation form is intended to be used.
Self-Assessment
You should consider having your employees complete a self-assessment of their performance. This helps to show the employees what you think is important about their work performance, and it provides you with a view into how the employee thinks he performed over the past year.
If there’s a significant difference between how the employee thinks he performed and how the supervisor thinks the employee performed, it’s important to address that difference so the employee and the supervisor develop a similar understanding of how the employee is performing.
Also, some employees may recognize if they have a problem area and may admit in their own self-assessment that there’s an area that they need to fix.
Retain Good Employees
While you certainly want to address problem areas when they arise, you will also want to use the performance evaluation process to provide positive feedback to employees when it is deserved. This positive feedback not only tends to assist with keeping your employee on the same productive path, but it also may help you to retain your good employees.
Your good performers want to hear when they are doing well, and you should positively reinforce their good performance. While we live in a time where employees jump from employer to employer, telling your good performers in a performance evaluation that their work is appreciated is a simple step you can take to help keep them with your company. An employee who feels underappreciated may be more likely to look for other opportunities.
Bottom Line
The yearly performance evaluation process is an important part of any good business practice. It helps to keep your good performers moving in the same direction, and it helps to identify problem areas that need to be addressed.
If you find you need to discipline or discharge an employee for work performance issues, failing to conduct proper performance evaluations could place you in a difficult and potentially expensive position.
Jeffrey M. Cropp is an attorney with Steptoe & Johnson PLLC in Bridgeport, West Virginia, and can be reached at jeffrey.cropp@steptoe-johnson.com.