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Legal Clinic

Best Performance-Evaluation Practices

The Legal Clinic offers some best practices for preparing for -- and conducting -- performance evaluations. Effective evaluations often result in improved employee performance, but, if not, the accompanying documentation will be useful should termination be necessary.

Monday, January 23, 2012
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Question: Can you please provide some best practices for delivering performance evaluations? What should, and should not, be said in reviews -- especially when the review is not going to be a good one?

Answer: The performance evaluation is an important opportunity for employers to provide employees with constructive feedback and to identify and coach deficiencies.

When done properly, the evaluation process can improve performance and maintain morale. However, when done poorly, the evaluation process has the potential to lead to employee unrest and expose employers to liability.

Employers would, therefore, do well to conduct performance evaluations in accordance with the following guidelines:

Adhere to written procedure. If an employer maintains a written Performance Review Policy, the employer should conduct evaluations in accordance with that policy and do their best not to unnecessarily deviate. Conducting reviews late, or not at all, may upset employees and leave the impression that the employer does not take the review process seriously.

Set aside sufficient time. An annual review usually requires 40 minutes to one hour to be done properly. Ensure that adequate time is reserved to thoroughly address all aspects of the evaluation, as well as potential issues that the employee may bring up.

Appoint and train a reviewer. The reviewer should be an immediate supervisor or manager who has first-hand knowledge of the employee's performance. The reviewer should be trained to provide an objective, clear, accurate and timely review.

Training should also explain that the reviewer may not consider any prohibited factors, such as the employee's sex, age, race, national origin, religion or membership in any other protected class. The supervisor must be neutral; if the employer has any concern that the supervisor is biased, the employer should consider designating a different supervisor to conduct the review or appoint an independent committee to make any related employment decisions.

The supervisor should also be informed of the confidential nature of evaluations and the legal consequences, including claims of libel, slander or invasion of privacy, which could potentially arise from the supervisor publishing criticism of an employee to others without a legitimate need to do so. See 10-260 Labor and Employment Law ยง 260.08 (2011).

Give the employee an opportunity to self-evaluate prior to the scheduled review. This reinforces the idea that the evaluation process is a joint process guided by the interests of both the employer and the employee. The self-evaluation may also bring to light achievements that the reviewer may not remember and identify major differences in perception that should be addressed.

Prepare for the evaluation. The reviewer should review all of the documents and records relating to the employee's performance, productivity and behavior, as well as the employee's self-evaluation. This includes reviewing sales records, productivity reports, time cards, budget reports, compliance reports and call reports.

Upon reviewing these documents, the reviewer should draft a written evaluation. Employers often use an evaluation form tailored to the job title. This ensures the employer evaluates each employee on uniform criteria. See generally Performance Appraisal, Training, and Productivity.

The written evaluation can also be used as a discussion aid and outline for the in-person evaluation to ensure the reviewer maintains objectivity and does not get sidetracked.

Make the employee feel comfortable. Conduct the evaluation in a private setting that will make the employee feel at ease. If possible, sit in a conference room or an office where a desk does not separate the reviewer from the employee. If either the reviewer or the employee would feel more comfortable having a third-party present, invite an HR employee or a manager from a different department to observe the review.

Maintain objectivity. The evaluation should be strictly job-related and as objective as possible. Specifically, the reviewer should evaluate each employee on the same criteria and analyze each factor independently (i.e., performance of particular job duties and responsibilities, achievement of specified targets and goals, ability to work with others, communication skills, ability to take direction, attendance, lateness, etc.).

The reviewer should avoid discussing or comparing the employee to his or her co-workers. Further, the review should not unnecessarily overemphasize recent happenings or isolated incidents that are not typical of the employee's normal work. See Action Plan: How to Perform an Employee Appraisal.

Identify weaknesses and potential problems. The reviewer should provide straightforward and honest feedback, including clear information about how to improve performance, and a warning that improvement is necessary and/or that continued poor performance may result in termination or demotion.

For example, do not rate the employee's performance as "good," if it is actually substandard. This review will not put the employee on notice of deficiencies and in the event of litigation, requires the employer to later take a seemingly contradictory position that "good" performance is insufficient.

The reviewer should also provide the employee with a timeline or deadline by which the employer expects to see improvement -- and articulate the potential consequences should the employee fail to improve within that timeline. Without this information, employees may be surprised or litigious when they are disciplined or terminated at a later date for poor performance.

Be specific. Provide specific examples as often as possible of positive and negative performance. General statements such as "you are not a hard worker" or "you have a bad attitude" are ambiguous and often hard to correct without some context. Instead, refer to the specific conduct; for example, "you have been insubordinate to the manager twice in the past six months by doing or failing to do X."

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Where possible, focus strictly on problems that have been documented because a prior written record substantiates the employer's concern.

Likewise, specify ways in which the employee can improve. Saying "work harder" or "improve quality" do not inform the employee how to meet expectations, whereas a statement such as "increase sales by 20 percent" or "make no more than three errors per day in data input" give the employee reachable goals. See Amy Delpo, How to Conduct Employee Evaluations, www.nolo.com at 2.

Keep the discussion professional. Although evaluations can be tense, reviewers should refrain from using sarcasm and humor because these comments may lead to misunderstanding and miscommunication.

Avoid discussing inappropriate factors. The reviewer should not consider or discuss the employee's sex, age, race, national origin, religion or membership in any other protected class. For example, the reviewer should not address absenteeism due to intermittent leave or unprofessional appearance due to religious attire.

Do not apologize for giving a poor rating or promise what you can't deliver. In response to an emotional employee who has been given a poor evaluation, you may feel pressure to tell the employee "everything will be OK," in order to make the employee feel better. Do not do this as everything may not be OK from the employer's standpoint. Refrain from promising what you can't guarantee.

Provide the employee with an opportunity to comment and ask questions -- and actively listen. During this time, the reviewer should listen carefully and take notes on the employee's feedback. If the employee is unclear, you may want to paraphrase what he or she says as follow and get agreement: "As I understand it, what you are saying is ..." or "What I understand you to mean is ... ."

Memorialize your observations and understanding of what the employee communicates to you in notes. These notes should be incorporated into the formal written evaluation.

Document the evaluation. By committing the evaluation to paper, the employer creates the documentation necessary to support subsequent employment decisions, including discharge and discipline. The employer should obtain the employee's signature on the written evaluation form to acknowledge that he/she has read the review and was counseled on the need to improve performance.

If the employee refuses to sign the evaluation, the reviewer should write that the employee refused to sign the document and contact the human resource department to follow up with the employee.

By following these steps, the evaluation will provide honest, valuable feedback from which both the employer and the employee will benefit. Further, by complying with these steps the performance evaluations will be a reliable document and an effective instrument for defending employment discrimination or wrongful discharge claims.

Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.

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