For most employers, performance reviews are intended to measure the extent to which an employee’s performance meets the requirements of that individual’s employment position.
Employers also use performance reviews to help to establish goals for the future, open channels of communication, and strengthen the relationship between employer and employee.
Some employees, however, perceive that performance reviews are sessions in which every mistake made by that employee in the past review period is dissected and analyzed ad nauseam, that unrealistic goals will be set, and that meaningless threats and/or promises will be made regarding future performance.
Employers and employees often have conflicting opinions about the purpose of performance reviews, which can mean that performance reviews present a significant legal and administrative challenge to supervisors and HR departments.
In order to approach the lofty expectations of employers for performance reviews, and bridge the gap between those expectations and employees’ more negative interpretations, the reviews must include three key elements:
- Clear identification of job standards;
- Consistent, objective measurement of the extent to which those standards are being met; and
- Provision of opportunities for clarification and/or feedback.
If any of the three factors are eliminated, the performance review process is a meaningless exercise and might, in fact, cause more harm than good.
Clear Identification of Job Standards
Before employers can fairly determine whether an employee possesses the knowledge and technical competencies to perform his or her job responsibilities, those responsibilities must be clearly defined and effectively communicated to the employee.
A written job description is helpful, but cannot be the basis of a full and fair performance evaluation unless the employee is aware of the description and of the expectations that flow from it.
Job descriptions should set forth the basic responsibilities of the employment position, should be written in a clear and understandable language, and should specifically list any skills or areas of expertise that the employer deems to be essential to the job.
Failure to include such information could be the basis of an employee’s argument that he or she did not fully understand the scope of the job responsibilities, and was therefore unfairly evaluated. This description should be provided to an employee at the start of employment, and when any substantive revisions are made to the job description for any reason.
In addition to providing a job description to an employee at the beginning of his or her tenure, and providing appropriate updates, an employer should make every effort to use the job description as a reference point during the performance review. Such use adds an element of objectivity to the review process and provides a relevant basis from which to approach a fair evaluation of performance.
Smaller companies, or companies for which written job descriptions are impractical (i.e., “start up” companies in which job descriptions are still in a developmental stage) can include a written list of basic employment responsibilities, if appropriate, such as “compliance with company policies and procedures,” “regular attendance,” and “knowledge of basic operating systems,” and should state clearly to employees that these factors will be part of their performance reviews.
Again, clearly identifying certain standards by which an employee’s performance will be measured establishes an objective basis for the performance review.
Measurements Used in Documenting Performance
Although many employee evaluations systems are based on a numerical ranking system, employers should avoid numerical rankings, if possible. Generally, such systems cause immediate disagreement; it is human nature to feel that one deserves a higher “score” than is received.
Using objective descriptive rankings (“Exemplary,” “Above Average,” “Competent,” “Marginal,” and “Unacceptable,” for example) allows employers to support determinations with factual documentation, and avoids the resentment which is sometimes generated by a numerical “grading” system.
The most obvious, but most frequently disregarded, advice to individuals conducting performance reviews is to set aside friendship, sympathy, and personal animus and evaluate the employee on a factually objective basis.
Just as an unfairly critical review can serve to demoralize an overly sensitive employee, an unwarranted positive review can undermine a company’s future argument regarding a less-than-stellar performer who is terminated for performance problems.
The Supreme Court’s recent decision in Reeves v. Sanderson Plumbing Products (decided June 12, 2000) makes this issue even more critical. In that case, the Court held that an employee’s prima facie case of discrimination, coupled with sufficient evidence for a reasonable fact finder to reject the employer’s nondiscriminatory explanation for its decision to terminate the employee, may be adequate to sustain a finding of liability for intentional discrimination on the part of the employer.
An employer who argues that it terminated an individual for performance problems may weaken its explanation of nondiscriminatory conduct if the documented reviews for the employee indicate only positive comments prior to the termination.
Individuals who conduct performance reviews must be non-judgmental in their approach, avoiding subjective comments and over-generalizations. Written reviews should not include gratuitous editorializing, and should be factual and as accurate as possible regarding specific examples of performance or conduct.
Opportunities for Clarification or Feedback
An employer cannot assume that its employee has fully understood a performance review without allowing an opportunity for discussion of that review. Performance reviews should take place with as much privacy as possible, to allow the employee to voice concerns comfortably, and with sufficient time to fully cover both the employee’s achievements and any incidents of marginal or unsatisfactory performance.
The review should allow time for questions, but should not be used as a “gripe” session by either the reviewer or the employee.
Any written evaluation form used in the review process should include sufficient space for employee comments. Employee comments should be followed up promptly, especially if they raise issues that may have an impact on future employee performance or company morale.
While the employee may not agree with each element in the assessment, he or she should be able to sign off on the performance review believing that the process was productive, and done even-handedly and objectively, with full opportunity to voice his or her concerns and questions.
What NOT to Do in Performance Reviews:
The performance review session should not be used for the following purposes:
- To discuss general business strategy;
- To analyze past decisions concerning the employee;
- To criticize or praise other employees; or
- To reprimand the employee.
Conclusion
Performance reviews are fundamental to a productive workplace.
The evaluation process, when properly and fairly conducted, can assist in strengthening employer-employee relationships, can increase an employee’s sense of empowerment and personal investment in the company, and lead to a more competitive and satisfied workforce.
When done improperly, performance reviews can work against employers and may actually support a claim for wrongful termination.
The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.
