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Performance Reviews Help Create Great Employees
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Article 3: Conduct Honest Reviews
No one likes confrontation. Little wonder, then, that supervisors often soft pedal negative performance reviews.
“Traditionally there is ‘grade inflation’ in evaluations,” says James J. McDonald, a partner in the Irvine, Calif., office of Fisher & Phillips, a nationwide employment law firm.
“Employers very often think it is easier to give unwarranted high marks to an underperforming employee than to deal with the uncomfortable subject of performance shortcomings.”
Unfortunately, inflated evaluations can cause problems down the road if the worker needs to be terminated for poor performance.
“The chance of a wrongful termination claim is much greater if the file has a glowing evaluation or two in the year or so prior to the termination,” warns McDonald.
That may come as a surprise to some employers. After all, in most circumstances no federal or state law requires that employees be warned of their shortcomings before termination. Even so, says McDonald, from a legal standpoint, candid evaluations of poor performance are important for two reasons.
First, judges and juries often implicitly place the burden in a lawsuit on the employer to show fair treatment of an employee.
“Theoretically you can let a person go for any reason under the basic ‘employment at will’ doctrine,” notes McDonald. “But there are many exceptions to this today, depending on state law.
“For example, an employee may claim that he or she had an implied contract to be terminated only for cause. Or that a termination was due to whistle-blowing, or in retaliation for filing workers’ comp claims or because the employee refused an employer’s order to violate the law or to commit fraud on customers. While the plaintiff in such suits has the burden of proof, in many cases judges and juries expect the employer to prove fair treatment.”
There’s another reason for candid assessments: “A growing number of wrongful termination claims these days are based on some allegation of discrimination,” reports McDonald.
“If a discharged individual is in a protected group [including minorities, women, older individuals and the disabled] the employer has to be able to show a non-discriminatory reason for the action taken. If the purported reason is poor performance, but the employee’s file contains evaluations with very high grades, the employee is likely to establish that the employer’s explanation for termination was pretextual.”
Bottom line: Protect yourself legally by giving honest evaluations.
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Performance Reviews Help Create Great Employees
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