“A Shield or a Sword? The Role of Performance Evaluations in Employment Litigation”


Bruce’s Summary: Performance Evaluations – for some managers a curse when the review is not so good and for other managers a blessing when the review is glowing and/or outstanding. But, what is it really good for in today’s litigious society? Originally, its purpose was to annually help employees understand how they were progressing overall in their job performance by having an annual one-on-one meeting with their manager and covering areas of their job where they were doing well in overall performance expectations and areas of their job where they could improve in overall performance expectations.
During my 35 years in HR I found two to three camps who had opinions on the subject of having an organizational Performance Review Program.
The first and most vocal were the managers who hated (yes hated) the concept of even doing performance reviews. Many times, the reason was that these particular managers only spoke with their employees annually anyway and now were being forced to actually talk to and ultimately discuss with one or two employees their poor performance issues. Naturally these particular employees were always upset and sometimes angry about being surprised and punished by a lower rating.
The second group of managers were less vocal because they had open communication lines with their employees and any issues affecting their employee’s performance, attendance or behavior were addressed at the time the issue occurred. What they didn’t like the was the paper trail required for documentation.
The third group felt all their employees walked on water and deserved outstanding ratings and never had a problem that elevated to the level of a performance related discussion. As everyone knows, this approach didn’t meet the forced (bell curve) performance rating criteria scale. However, it gave the manager the excuse that he/she fought the good battle and upper management made them restructure the ratings, allowing the manager to play the victim role.
The author gives a good overview of the legal repercussions that can occur when litigation comes into play for an employer. Documentation is needed to show a reasonable defense to alleged charges raised by an affected employee, past or present. As the author shows the timing of performance reviews is critical along with the language used in describing performance issues and allowing something as simple as providing an employee the opportunity to respond, if needed. “None of the information contained herein should be construed as legal advice, nor are Calvin Associates consultants engaged to offer legal advice. If there is a need for legal advice, please contact and seek the advice of independent legal counsel.” www.calvin-associates.com