The Impact on Management Decisions and Litigation

1. Communicate Effectively With Employees Through Performance Evaluations

2. Document, Document, Document 3. Avoid Pitfalls and Potential Litigation 4. Selection Validation for Compensation,

Promotions, Discipline, or Termination 5. Assist Legal Team with Litigation Defense

Are comments on performance evaluations understood by the employee?

Does someone have to translate or break the

“code” to make sense of what the comments really mean?

Difference between using proper language

and comments that lend themselves to wrong interpretations.

Funny Performance Evaluation Translations: www.basicjokes.com A Keen Analyst= Thoroughly Confused Accepts New Job Assignments Willingly= Never

finishes a job Competent= Is still able to get work done if supervisor

helps Consults with co-workers often= indecisive, confused,

clueless Delegates responsibility effectively= passes the buck

well Displays excellent intuitive judgment= knows when to

disappear Well informed= knows all the office gossip and where

all the skeletons are kept Uses resources well= delegates everything

Inappropriate Comments: http://www.zdnet.com/blog/sommer/inappropriate-performance-review-phrases-wed-all-like-to-use/691 “He talks to himself – a lot – because he likes the

sound of his voice better than mine or the client’s” “If I wrote a performance review as poorly as he

writes, it would say ‘UR GRAMR SUKS” “Employee wants the firm to sponsor his attendance

in a foreign language class. I suggested he learn some English phrases first like ‘on-time’, ‘on-budget’ and ‘performance plan’”

“Asking out our married CEO on a date was not a good career move”

“He set a department record for the most dead relatives, sick pets and 24-hour bugs in one year”

Appropriate Comments: Attendance/Punctuality Employee takes work responsibilities seriously; he is

on time and ensures that he does not miss too many days of work

Employee’s attendance record reflects excessive tardiness and absenteeism. These issues impact the workload of his co-workers.

Work Culture/Environment Employee is a good team player. Employee maintains

professionalism towards management. Employee is proactive in seeking opportunities to

learn new things. Employee needs to improve productivity. Employee should work on managing time.

Ignoring poor performance lowers morale, diminishes work quality and reduces teamwork

Resolving inadequate performance takes self evaluation

Ask questions: “How do you see yourself meeting work performance expectations?

How do you see yourself contributing to the company?

Offer help: “How can I help you to move towards our goals?”

Low performance has more than one cause- get the entire story

Communicate the quality outcomes before work begins…not after the performance becomes poor

Empower employees- menial tasks, low autonomy, lack of connection to supervisors and micromanaging lead to poor performance.

Asking for involvement creates ownership

Make performance part of culture rather than just an annual task

Accurate, Specific and Concrete Job related behaviors only Document issues throughout the year and

reflect those in performance review Preserve their written response, if any Apply rules for evaluations uniformly Might be considered discrimination or harassment

if not Even if you have disciplined, counseled or

warned an employee via an oral conversation, document those issues in the evaluation

Bias Free Assessment Halo Horn Central Recency Similar to Me

The Law Title VII of Civil Rights Act of 1964- prohibits employment discrimination on the basis of race, color, religion, sex or national origin. 42 U.S. C. 2000e-2(a).Title VII also makes it unlawful for an employer to retaliate against an employee who opposes an employment practice made unlawful by Title VII. See 42 U.S.C. §2000e-3(a). Texas Labor Code Chapter 21- it is unlawful for an employer to discriminate against an employee with respect to compensation, the terms, conditions or privileges of employment because of race, color, disability, religion, sex, or national origin. Tex. Lab. Code 21.051. The Labor Code also prohibits retaliation by an employer against a person who files a charge of employment discrimination. Tex. Lab. Code 21.055(2).

The “Old Standard” for Title VII and Labor Code cases: “Ultimate employment decisions” that are actionable include decisions to hire, discharge, promote, compensate, or grant leave, but not events such as disciplinary filings, supervisor's reprimands, or even poor performance reviews. Messer v. Meno, 130 F.3d 130, 140 (5th Cir. 1997)

hostility from fellow employees, verbal threats to fire, reprimands, criticism of the employee's work, and negative employment evaluations do not constitute actionable adverse employment decisions. Mattern v. Eastman Kodak Co., 104 F.3d 702, 707-08 (5th Cir. 1997)

The “New Standard” for Title VII and Labor Code cases: Burlington Northern & Santa Fe Ry. Co. v. White, 126 S.Ct. 2405, 2415 (2006) – objective standard requires a plaintiff to show that “a reasonable employee would have found the challenged action materially adverse which in the context means it might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

Performance Evaluations: Employer’s Contentions: City had a legitimate non-discriminatory/retaliatory reason for discipline/demotion/termination.

An employee’s “lack of knowledge, poor performance, persistent errors, failure to plan, organize and oversee construction projects effectively, inadequate communication skills, and unwillingness to improve deficiencies;” Martin v. Kroger, Co., 65 F.Supp2, 516, 546-547 (S.D. Tex. 1999);

Both poor performance and inappropriate behavior can constitute legitimate, non-retaliatory reasons for a termination. See Strong v. University Healthcare System, L.L.C., 482 F.3d 802, 808 (5th Cir. 2007).

Performance Evaluations: Employee’s Contentions: Good Performance Eval- Stated reason for discipline/discharge was

false Bad Performance Eval- Other “similarly situated” employees were

treated better Received bad performance evaluations after

complaint of harassment/discrimination Employee noted a disability

Title VII- No Disparate Impact Does appraisal system have disproportionate effect on

protected classes? If so, then is the system job related and consistent

with business necessity? If so, is there another less discriminatory alternative

available for appraisal system? Ensure Appraisals Are Validated

Performance Standards & Appraisals Require Job Relatedness; appraisal must be based on specific job aspects; job analysis required

Performance appraisals are considered “employment tests”; appraisal system requires validity.

Objective v. Subjective Performance Standardized Administration EEOC Uniform Guidelines

EEOC Uniform Guidelines For Employment Selection Procedures What is it? Who does it cover? What does it cover?

How Do EEOC Guidelines Work? Is there adverse impact?

4/5th or 80% Rule If No, then your performance appraisal approach is ok. If yes…

You must eliminate or justify use of methodology Use alternative methods for appraisal Modify the methodology Exclude the methodology or component Continue use only if it is valid, job related, business necessity

and there is no other equally effective method available

Job Related Job Analysis Knowledge, Skills, Abilities

Business Necessity Safe and efficient operation of business

Keep Things Current Update job analysis Keep abreast of changes in job requirements Communicate with employees Keep records of updates & results of statistics

Document Gathering Personnel Files Job Descriptions & Performance Evaluations

Payroll Records Personnel Policy Manuals EEOC & TWC Documents Emails! E-Preservation!- It’s the LAW!

Internal Investigation Important documents attorneys don’t know

about but you think might be relevant i.e.- account adjustment forms; invoices; work orders,

etc.

Identifying Key Witnesses Assist With Employee Interviews Assist With Discovery Requests Interrogatories, Requests for Production,

Requests for Admissions Depositions

Develop facts Assist In Investigation Attorneys are here to help; so let us help

you! Honesty!

Be Discreet and Don’t Talk Don’t talk to other employees or former

employees about the lawsuit Don’t talk to Plaintiff’s Counsel

Mediation Trial

Open, honest, clear, concise two-way performance evaluation comments

Document and preserve performance evaluations, emails, disciplinary actions

Be consistent with employees to demonstrate bias-free environment

Validate your performance appraisal methodology

Cooperate with attorneys in defense of any lawsuit