Performance Evaluations: Legal Point of View

1
Performance Evaluations Legal Point of View

• Anita Lichtblau, Esq.
• Executive Director/General Counsel
• CAPLAW
• June 2007
• www.caplaw.org

2
Why do written evaluations?

• Accountability
• Improvement of job performance
• Basis for merit pay raises
• Requirement --
• Head Start regulations or other programs
• CAAs Personnel Policies
• Collective bargaining rule
• Defense of legal claims by employee

3
Why written evaluations?

• Improve job satisfaction by showing interest in
  progress
• Guide supervisors in planning employee's
  training.
• Assure considered opinion of performance and
  focus maximum attention on achievement of
  assigned duties.
• Determine and record talents, skills, and
  capabilities
• Plan personnel moves that best utilize ee's
  capabilities.
• Provide opportunity to discuss job
  problems/interests
• Assemble substantiating data for use as a guide
  for wage adjustments, promotions, disciplinary
  action, and termination.  

4
How are evaluations used to defend discrimination
claims?

• Record of legitimate, non-discriminatory reasons
  for action against employee
• Documents performance deficiencies
• Evaluations must focus on job-related areas, not
  stereotypes based on protected classes
• Record of superior performance, qualifications of
  other employees given promotion or not terminated

5
Laws prohibiting employment discrimination

• Title VII of the Civil Rights Act of 1964
• May not discriminate in any aspect of employment
  on basis of race, color, religion, sex,
  pregnancy, or national origin
• Americans with Disabilities Act
• Age Discrimination in Employment Act
• Equal Pay Act of 1963
• Uniformed Services Employment and Reemployment
  Rights Act
• State laws

6
Tort liability arising out of performance
appraisals

• Negligence Breach of duty to conduct
  evaluations fairly and in good faith
• Superior evaluation despite supervisors
  knowledge of imminent termination
• Untruthful positive evaluation communicated to
  another employer causes harm to others
• Defamation/misrepresentation
• Fair evaluations deter wrongful termination claims

7
Best practices for evaluations appraisal form

• Develop appraisal form based on job requirements
  and description
• Show employees form at start of evaluation period
• Develop rating scale
• Require comments for very high and low ratings
• Rank importance of job functions being evaluated
• Include open-ended questions and room for
  comments
• Include areas for improvement section
• Require signatures, dates, of supervisor and
  employee

8
Electronic Appraisal Systems

• Web-based services
• Intra-organization electronic files
• Directory of on-line systems and software
  www.capterra.com
• Obtain on-line quotes from vendors
• Access to files by employer and employee
• Confidentiality

9

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Performance Appraisal Management for Sage Abra
HRMS
Easy-to-use and customizable, our Performance
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Managers have instant access to current, correct
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reviews. Human Resources maintains secure control
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information. PAM preserves the integrity of
360-degree and peer reviews by limiting appraisal
views of reviewers, yet allows managers who have
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on demand. Built-in electronic workflow
automatically routes appraisals to reviewers and
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action is required. PAM is easy to set up and
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10
Best practice - training

• Train evaluators
• Written instructions
• Group training sessions
• Basics of employment discrimination law and
  comments to avoid
• Be honest dont sugarcoat or ignore problems
• Include objective factual comments with examples,
  not conclusory unsupported opinions based on
  stereotypes
• Apply performance criteria consistently

11
Best practice regularly scheduled evaluations

• Conduct written evaluations at least annually, on
  regular schedule
• More frequently for new employees
• Completing timely, accurate evaluations should be
  part of performance measured for supervisors

12
Best practice Tell the Truth!

• Inflated evaluations deprive employee of
  opportunity for improvement and sets up employee
  for failure
• Vaughn v. Texaco, 918 F.2d 517 (5th Cir. 1990)
• Negative appraisal supports employers stated
  rationale for adverse action bad performance
• Positive appraisal suggests poor performance
  wasnt true reason for adverse action it was
  only a justification employer came up with at
  time of adverse action or when complaint brought
  to cover up true discriminatory reason -- PRETEXT

13
Best practice Avoid unjustified sharp drops in
evaluation

• Sharp drop in performance rating, especially
  right before adverse action, may not be
  believable unless supported by specific evidence
  of change in performance
• Thomas v. Exxon, 943 F. Supp. 751 (S.D. Texas
  1996)
• Could suggest discriminatory intent, especially
  if right after return from pregnancy or medical
  leave, or conducted by new supervisor with
  personal bias

14
Best Practice Use Objective Terms

• Avoid subjective comments as much as possible
• Use objective criteria and descriptions
• Focus on behavior-oriented appraisals versus
  trait-oriented appraisals
• Use job description as basis for
  responsibilities, update as necessary

15
Best Practice differentiate among employees
and skills

• Avoid tendency to rate all or most employees as
  average
• Praise (and reward) those who truly stand out
• Dont rate good employee highly on all
  competencies unless justified review skills and
  talents independently

16
Best practice comments to avoidPrice
Waterhouse, 490 U.S. 228 (1989)

• Woman considered for promotion was
• macho
• overcompensated for being a woman
• objected to her swearing only because its a
  lady using foul language
• advised to walk more femininely, talk more
  femininely, wear make-up, have her hair styled,
  and wear jewelry.

17
Best practice more comments to avoid

• Over the hill
• Old style management
• Need some new blood
• More examples

18
Best practice unbiased evaluators

• Caution evaluators against stereotyping based on
  race, sex, etc., or any other basis
• Evaluate based on actual performance
• Dont use evaluators with a personal bias against
  employee, or reason to judge unfairly, and dont
  base evaluation on comments from biased persons

19
Best practice more than one evaluator

• If possible, two or more people with personal
  knowledge of employees performance should
  separately evaluate
• Alternatively, or in addition, supervisor of
  evaluator(s) should review and sign appraisal
• Provides cross-check on evaluation

20
Best practice meet with employee

• Ask employee to complete evaluation beforehand?
• Give employee opportunity to comment
• Work together on plan for improvement
• Reasonable short-term and long-term goals
• Require employee to sign and date, even if s/he
  disagrees

21
Best practice Right to review unsatisfactory
evaluation

• Employee should have right to review by higher
  authority
• Direct supervisors and higher-ups should consult
  and communicate reasons for evaluation

22
Best practice confidentiality

• All evaluations, particularly negative ones,
  should be disclosed within the organization only
  to a very limited group of people, on a need to
  know basis.
• Any requests by third parties for evaluations
  should be reviewed carefully and only disclosed
  if required or authorized by law

23
Best practice monitor evaluations

• HR reviews evaluations to ensure against
• discriminatory comments
• consistently poor ratings for one group of
  employees, such as minorities
• consistently superior ratings for other groups of
  employees, such as non-minorities
• inflated appraisals, including rating all
  employees as middle-of-the road