Firing Without a Defense!

Defense Failed Because of Performance Appraisal?

In court, an inadequate or inaccurate performance evaluation can be used against you with devastating results. Many companies that have fired employees for poor performance and then found out too late that its appraisal documents didn't support the defense.

We often don't think of appraisals as legal challenges, but they often figure prominently in lawsuits. Juries tend to come down hard on employers who:

•Don't appear to have told the employee what was expected.
•Don’t appear to have given an employee a chance to improve.
•Say bad performance as the reason for a firing, but awarded the person a "satisfactory" or "good" rating.

In some companies, vital personnel decisions are made casually. This informal approach is easy, but dangerous. When there are no established criteria or performance standards on which to base personnel actions, such as transfers, promotions, terminations, and pay increases, managers tend to be influenced by the employee’s personality rather than what he or she is actually doing on the job.

10 Rules for Appraisals

Here are 10 tips for building a solid defense so it’s there in case you ever need it:

1. Carefully document how all employees are performing
You might be tempted to document only your problem employees. A better practice is to keep performance records on all of your workers. This means carefully recording your observations, praise, counseling, and warnings—in writing—in clear, objective language.

2. Make sure employees know what’s in their files
Don't slip negative information into files without letting employees see it. Ask workers to initial a summary of your discussions and the goals that have been agreed to. (Note that in some states, employees have the right to inspect their personnel files.)

3. Be candid and explicit
Although many managers are uncomfortable with this, it’s important to be frank. Don’t use euphemisms, such as, “There's room for improvement," or duck out of giving an employee strong, but necessary, constructive criticism. Be specific about what’s gone wrong and offer concrete steps for improvement. It is unfair and unrealistic to expect an employee to improve unless he or she knows exactly what is amiss.

4. Don’t give raises to marginal employees
Some employers give poor performers a raise in the hope it will motivate them to improve. Without counseling an employee about his or her inadequate performance, however, this strategy is doomed to fail. What’s more, if the employee is terminated and sues, he or she can point to the history of pay raises to show that he or she was doing a good job.

5. Don’t mention age, gender, race, etc.
This means, for example, not telling a 45-year-old, “The younger salespeople seem to grasp our new products better than you do,” or “We need some young blood around here.”

6. Don’t let marginal performers slide
When an employee’s poor performance goes uncriticized for several weeks or months, negative comments in a performance evaluation lose credibility and are likely to trigger complaints of unfairness or bias.

7. Use relevant, objective standards
Look at the job and how it is being performed, rather than the person. Some examples of objective criteria are:

•Maintaining or increasing sales volume
•Handling customer complaints
•Operating within a budget
•Meeting deadlines
•Writing reports
•Complying with certain company policies (such as those regarding absences)
•Reducing costs
•Overall productivity

8. Back up judgments with facts
Use production records, disciplinary reports, attendance records, examples of work quality, etc., to back up your assertions, and be clear about how you arrived at your conclusion

9. Make sure employees understand all performance standards
If they don’t fully understand their obligations and how their work is being judged, the performance appraisal system will be of little use, either as a performance management tool or a defense in a lawsuit.

10. Keep all performance evaluation materials in a confidential file
While employees should have access to their performance appraisals, others’ access to such information should be strictly on a need-to-know basis.

Summarized from Today’s HR Daily Advisor Tip