An Employment Litigator’s Tips for Preparing Effective Performance Evaluations

As Henry J. Kaiser once said, “Problems are only opportunities in work clothes.” So it is with annual performance evaluations — supervisors should see them as an opportunity to improve employee performance, or, if that does not work, as a valuable tool in defending against employment litigation claims. Instead, most supervisors dread them and, as a result, put them off as long as possible. Lawyers for ex-employees love them because, as a general rule, the evaluations: (i) are not brutally honest about poor performance because the supervisor is still “working” with the employee; (ii) conflict with later positions taken by the employer in litigation; and (iii) lack specific examples and often closely resemble the evaluation of employees given dissimilar raises or who are still employed. In my litigation travels, I have been both greatly helped and hurt by evaluations. I have also learned many lessons, some the hard way. Here are a few performance evaluation do’s and don’ts for supervisors:

1. Planning. Start to think about the evaluation at the beginning of the evaluation period, not the end. Keep track of good and bad performance examples throughout the year. If you evaluate all of your employees at the last minute because you are up a against a submission deadline, you may rush them and tend to generalize. This, in turn, creates a risk that the evaluations of your employees will tend to resemble each other.

2. The Good, the Bad and the Ugly. You should note good and bad behaviors, even if the overall evaluation is poor, unsatisfactory or fails to meet expectations. Such an evaluation appears much more balanced, fair and unbiased, even if it is overwhelmingly negative as a whole.

3. Support Your Conclusions. Nothing makes an evaluation more powerful than specific and concrete examples (date, time, place, deadlines met or missed, attendance, employee response after counseling or discipline, etc.). Keeping a folder or a log during the year will greatly assist you in recounting specifics in the evaluation. Assumptions and conclusions not supported by specifics are as unpersuasive in this context as any other.

4. Document Carefully. If you keep a folder or log during the year, keep in mind it is discoverable by the ex-employee’s lawyer in litigation. So make sure there is nothing inappropriate written (just the facts). We often see reviews that speculate about the causes for the performance issue through comments which attribute the poor performance to family problems, medical problems, stress, etc. Avoid this speculation and stick to the facts. In addition, make certain you can demonstrate that you keep similar logs or folders for all your employees. The employer must avoid any appearance that it “built a file” to justify an adverse employment decision. Also, supervisors should inform themselves about company policy on the required time period for retaining such a file after completion of the evaluation.

5. If You See Something, Say Something. If you notice trends or repeat behavior, don’t igore them. Note them in the review, particularly if the behavior has continued despite intervening counseling or discipline. This is a very powerful “specific.” (Note — supervisors get extra credit for using the log to correct behavior or improve performance by communicating with the employee at the time the behavior or performance deficiency occurs, rather than waiting to write about it in the evaluation.)

6. Watch Your Language. Too often, our first meeting with a supervisor to review an evaluation relevant to a litigation begins with the dreaded words, “I probably should have chosen a different word, but what I meant was… .” Obviously, supervisors must guard against any stereotyping and against mentioning factors that tend to indicate a retaliatory or discriminatory motive. Have Human Resources or another manager review your comments. Consider drafting the evaluation well before it is due. Then put it aside and pick it up again after a few days. Doing so provides an opportunity to examine it with fresh eyes and to make needed changes.

7. Get Help If You Need It. Supervisors and managers are required every day to do more with less in order to accomplish the mission of their organizational units. Owners and Human Resource Professionals owe it to those supervisors to provide training and assistance in completing evaluations. This means doing more than just establishing a system, a form, and a deadline for completion. If your organization has not offered you that kind of training and assistance, don’t be afraid to ask. You and your organization will be better off in the long run.