Tuesday, October 29, 2019

How to Write an Employee Performance Evaluation That Will Help You If You Are Sued

If there is one thing this blog harps on, it is keeping good documentation (for more articles, click hereherehere or even here). Annual performance evaluations, consistently documenting violations of the employers’ rules, documenting an employees’ receipt of company policies regarding things like sexual harassment and anti-discrimination, etc., are all essential for employers. Not only does this make for a good workplace, in the event you are sued by one of your former employees this documentation will prove essential to your defense.

Probably the most important component of any defense is the employee’s performance evaluations. The employees who sue are generally the ones who are fired. Being able to point to documents showing that their negative performance was the reason they were fired, and not their race, gender, sexual orientation, etc., is crucial in such a lawsuit.

So what should a good performance evaluation contain that will help you in the event you are sued? Here are some of my suggestions:
  • Document Performance Honestly. It is a natural human instinct to try to avoid hurting the feelings of others. This manifests itself in performance evaluations that do not document instances where the employee has fallen short of expectations for fear of hurting that employee’s feelings. Don’t fall into this trap. If the employee sues, he or she can point to the stellar performance reviews as evidence that his or her performance was fine, and that it was illegal reasons that led to the firing.
  • Document All Concerns with Performance. I believe that the best way to correct an employee’s performance is usually to have a face-to-face conversation with that employee explaining what needs to be corrected. But such a conversation should be documented. So should any other instance where an employee failed to adequately perform or was reprimanded.
  • Be Specific. Document exactly what the employee did wrong and when it occurred. Vague references to poor performance are not going to be very convincing in court.
  • Write the Evaluation So Others Can Understand It. Pretend that you are a judge or on a jury when reading your performance evaluation. You have never met this employee, and probably don’t know that much about your company. Write the evaluation in a way a neutral third-party can understand.
  • Evaluate Performance, Not Personality. Objectively evaluate how the employee has performed. Do not reference things about the employee’s personality that irritate you. Maybe the employee talks too much. If he or she is only doing that outside the workplace and is focused and not bothering others at work, it should not be documented. Personal attacks could give rise to claims that the employer does not like the employee’s personality because of that employee’s race, gender, ethnicity, etc.
  • Don’t Compare Employees. Saying that a certain employee did a better job than another could lead to allegations of favoritism based on some illegal reason. Keep the evaluation focused on the employee and what he or she could do better.
  • Follow Up. Performance evaluations should reference previous evaluations and honestly assess whether the employee has made progress on correcting concerns addressed in previous evaluations.

I can say from experience that your attorneys will be grateful to you for writing solid performance reviews. If you would like help drafting performance reviews, or have questions, please contact me.