Effective performance reviews are an excellent tool in rewarding good performance, correcting problems, and shielding your business from potential liability. Unfortunately, if not done correctly, they can be your worst enemy in litigation with an employee who claims to have been wrongly discharged in violation of one of the federal, state or local employment discrimination laws.
Follow these tips to ensure that performance reviews are done properly:
DO conduct performance reviews on a regular basis.
DON’T wait until there is a problem with an employee before giving them their first performance review in five years.
DO include positive comments. Employees who feel they’ve been recognized and appreciated for their positive contributions to the workplace are more likely to be receptive to addressing areas that need improvement.
DON’T write a glowing review for an employee who is doing a bad job. If you later fire that employee for performance deficiencies, a performance review that said nothing but good things about their performance could be used against you if the employee claims the reason stated for termination was a “pretext” for unlawful discrimination or retaliation for protected activity.
DO counsel your employees on an ongoing basis about areas that need improvement.
DON’T make the performance review be the first time an employee has ever heard about an issue. For example, an employee who is habitually tardy should be counseled about that in between reviews. Then the performance review can point out that being on time is a continuing problem, despite previous warnings.
DO investigate any sudden radical change in an employee’s performance review prepared by their supervisor. Find out if the employee made an internal complaint or if any unusual incident occurred shortly before the performance review was conducted. Discuss the performance issues with the supervisor and the employee (separately), so you can be assured there is no claim of retaliation. Draft a memo to the file documenting the conversation.
DON’T just ignore a performance review that is completely inconsistent with all prior reviews for this employee.
DO stick to performance issues and avoid personal comments or any reference to health issues or personal problems outside the workplace when completing a review.
DON’T tie performance deficiencies to use of sick leave, FMLA, or membership in a protected class. For example, don’t criticize an employee for “being sick all the time” or “missing a deadline due to time off for surgery.” Don’t accuse an older employee of “slowing down” or use other phrases that might be construed as age bias.
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