Performance evaluations are useful for both the employer and the employee. They help the employer make informed decisions regarding important employment matters such as compensation, transfers, promotions and termination. They keep the employee informed regarding his or her performance, including where he or she can improve. Performance evaluations are also important, however, in avoiding and defending against litigation. A performance evaluation that creates a record of an employee’s performance can help build an excellent defense to an employment discrimination lawsuit.
It is important that managers and supervisors are informed as to the importance of an employment evaluation. There are several mistakes that managers typically make that can ruin the value of a performance evaluation. For instance, evaluators sometimes rate an employee’s performance as “good” or “excellent” without really considering the employee’s performance. Similarly, evaluators sometimes use the same language on each employee’s evaluation, suggesting that little time or effort was devoted to their completion. Some evaluators try to use the performance evaluation as a motivational tool or morale booster by giving the employee undeservedly high marks, which leads the employee to believe that his or her employment is secure. Thoughtlessly evaluating the employee, using form language in the evaluation or giving the employee undeservedly high marks defeats both the evaluative and litigation-defense purpose of employment evaluations.
The employment evaluation process can sometimes be an uncomfortable experience for the evaluator and employee. However, when evaluations are done in a candid, consistent and open manner, they can benefit both parties. Though there is no requirement under federal law for employment evaluations, evaluations are an important component of the employer/employee relationship and should be treated accordingly. The employer should use care to be consistent in how the evaluations are conducted and how they are kept. Often, they become part of the employee’s personnel file. As with any type of record, loss or destruction of evaluations can lead to a negative evidentiary presumption; therefore, it is important to identify who is tasked with creating, retaining and safeguarding these documents.
Since supervisors and managers generally administer performance evaluations, it is essential that they receive the appropriate training and instruction. Even with an established performance evaluation procedure in place, a manager who ineffectively or erroneously performs the evaluation can render it useless or harmful to the employer and employee.
The company should give written instructions to supervisors and managers who evaluate employees regarding performance evaluations. The instructions should:
Each supervisor or manager who receives a copy of the written instructions should sign an acknowledgment that they have reviewed the performance evaluation instructions and that they agree to follow the instructions. The acknowledgment should also indicate that the supervisor/manager will be held responsible for his or her evaluations.
In addition to written instructions, the employer should provide training for managers and supervisors who will administer performance evaluations. The training should cover the evaluation procedure in detail, as well as address some common mistakes made during the process. Documentation has become essential in all areas of employment management and this is no exception. The training should emphasize the need for reviewing the job description and functions of the particular employee. It should also address the criteria that the employer wishes to use. Mistakes during the process can include use of conclusory language without providing examples or reasoning for conclusions.
Training also serves to allow the employer to remind managers about the language and terminology used to evaluate and to underscore that evaluation should be made on the basis of performance, keeping the focus on objective matters rather than subjective. Through this training, the employer can be more consistent across its workforce. It is important that the supervisor or manager know that the employer will not tolerate any bias or stereotyping in the evaluation process.
Performance evaluations should be job specific. A stock evaluation form, while consistent, may be insufficient to address the performance of a particular employee. The evaluation should be based on the tasks described in the job description of the employee, as well as job-related skills that bear on the employee’s performance. Examples of generally appropriate areas of evaluation include commitment, judgment, initiative, leadership, professionalism and knowledge of the job.
Keep in mind that the traditional adjectives used in evaluation forms, such as “satisfactory” or “poor” are sometimes inappropriate. If the company uses a standard evaluation form for all or most of its employees, evaluators should indicate which categories are “not applicable” to a given employee.
Evaluations should be based on job performance, not personality traits. For an evaluation to appropriately help an employee develop, the evaluation cannot be received as an attack on the employee’s personality. Personal attacks on an employee during an evaluation can create a number of potential liabilities for the employer, including discrimination claims if the criticism is arguably based on a stereotype.
It is also important that the evaluation cover all aspects of the employee’s job. An evaluation that does not cover all key functions of an employee can make defending the corporation in a subsequent suit difficult. If the employee is fired because of his or her poor performance in an area that is not covered by the performance evaluation, then the employer will have no record of the employee’s poor performance.
Even if the employer can show that the employee did a poor job in a specific area without the performance evaluation, it is hard to show that the poor performance was a truly important part of the employee’s job if it is not included in his or her performance evaluation.
To ensure against bias or stereotyping by an evaluator, the company should create a system that monitors the evaluation process. Human resources should review all performance evaluations before they are presented to the employee. The evaluation should also be reviewed and approved by one of the evaluator’s superiors, preferably one who is familiar with the person being evaluated or the job duties of that employee. Additional levels of review decrease the likelihood of bias and reinforce the reliability of the evaluation.
Once an evaluation monitoring system is in place, the system itself should occasionally be tested by the employer to ensure that it is effectively creating a consistent and fair evaluation procedure for all employees. One way of testing the system is to review those human resource employees who are involved in screening the evaluations. Periodic examination to ensure that the process, instructions and forms remain consistent with the job descriptions and company policy is also important. If enough employees are implicated, it can be useful to review evaluation results from a statistical standpoint to guard against disparate impact on a defined group of employees.
Many companies ask employees to perform a self-assessment as part of the evaluation process. Although this is not to be recommended for all job categories, it does provide several useful opportunities to improve management outcomes, including:
By identifying this through a self-evaluation process, the employer can work to adjust expectations and guide the employee to a better understanding of what is expected. On the other hand, some managers can be intimidated by the employee’s over-valuation of job worth and thereby produce a less valuable evaluation.
It is important that performance evaluations be carefully documented. An evaluation is of little use if there is no documented record of it. A consistent system of documentation should be a fundamental step in any performance evaluation procedure.
The employee should have the opportunity to review the completed evaluation and comment on it. Allowing the employee to review the evaluation provides proof of fairness and can potentially alert the employer to additional problems with the employee.
The employee should also have the opportunity to disagree or agree with the job criteria for which he or she is evaluated. If the employee agrees with the duties being described, then there can be no dispute regarding the scope of the evaluation. If the employee disagrees with the evaluation, then the employer has the opportunity to change the criteria of the evaluation or reintroduce the employee to the duties of his or her job.
The employee should sign an acknowledgment that he or she has read the evaluation. This prevents the employee from claiming ignorance as to the criteria or results of the evaluation. The employee should also be given the opportunity to write a response to his or her review. This improves communication between the employer and employee and creates a record of the employee’s assent to the evaluation.
To the extent that performance evaluations are used as an opportunity to motivate an employee to reach some stated goal, acknowledgment of that goal should also be made on the evaluation. If, for instance, the supervisor and employee agree that the employee has frequently been late for work and agree that the employee must work harder to be on time, then the goal of better punctuality should be noted on the evaluation.
Though performance evaluations can be helpful in improving employee performance and defending against litigation, they should not be used at all if certain elements of the procedure are missing. Remember, although an employee evaluation is a confidential document, an employee may be able to obtain a copy during the course of a lawsuit. The following are examples of crucial omissions from the evaluation procedure that render the evaluation useless or even harmful to the employer:
Policies and Forms
Performance evaluations — Federal
Recruiting and hiring — Federal
Background checks — Federal
Immigration — Federal
Temporary and leased employees, interns and volunteers — Federal
Independent contractors — Federal
Restrictive covenants and trade secrets — Federal
Policies and procedures manuals — Federal
Wages and hours — Federal
Child labor — Federal
Discrimination — Federal
Disabilities and reasonable accommodations — Federal
Workplace harassment — Federal
Benefits — Federal
Health insurance reform — Federal
Family and medical leave — Federal
Military leave — Federal
Other types of leave — Federal
Performance evaluations — Federal
Personnel files — Federal
Workplace investigations — Federal
Discipline — Federal
Termination — Federal
Plant closings and mass layoffs — Federal
Health insurance continuation coverage — Federal
Whistleblower protections — Federal
Privacy rights — Federal
Health insurance portability and privacy — Federal
Employment in the Internet age — Federal
Social media — Federal
Safety and health — Federal
Workplace violence — Federal
Politics in the workplace — Federal
Celebrations in the workplace — Federal
Federal contractors and affirmative action — Federal
Public employers — Federal
Unions — Federal
Drugs and alcohol — Federal
Telecommuting — Federal
Diversity in the workplace — Federal
International employment law — Federal
Employment practices liability insurance — Federal
Disaster planning — Federal
Pandemic outbreaks — Federal
Appendix A: Federal recordkeeping requirements
Appendix B: Posting requirements