Legal Pitfalls and Benefits of Employee Performance Evaluations

Many companies conduct routine job evaluations, whether in person, or on paper. These are done often routinely and without thought to whether they should be done, or how. While there is nothing inherently wrong with doing employee evaluations, there are some legal pitfalls to be wary of (but also, some benefits to conducting them as well).

Avoiding Lawsuits?

Employee evaluations can be a double edged sword, when it comes to the likelihood of getting sued for discrimination.

On the one hand, evaluations can show that an underperforming or insubordinate employee is really breaking company rules. Regular evaluations, where the employee was told of his or her behavior, given the chance to alter future performance, but did not do so, can go a long way to showing that you should punish that employee and you were doing so for valid non discriminatory reasons.

When an employee claims harassment or discrimination, you just pull the evaluations, and show all the negative (and non discriminatory) things that appear in the file, as proof that your reasons are valid, and not as a pretext intended to hide any discriminatory motive.

But evaluations can also open the door to litigation. Any negative evaluation could cause an employee to wonder if that evaluation is because he or she is a member of a protected class. Employees may wrongfully believe that you don’t like them because they are a member of a protective class.

Negative write ups may be considered a negative employment outcome, and so, even if you don’t outright punish the employee, regular negative write ups could be used by an employee to try and demonstrate that you are harassing or discriminating against them, or even retaliating against them, if they are in fact a member of a protected class.

Consistency and Specificity in Evaluations

If you do have an evaluation process, you should make sure to have valid criteria that are applied to all employees, and where possible, have the same person or people doing the evaluations.

Inconsistency in evaluations—say, one employee being evaluated negatively for coming into work late, while others don’t have any consequence for the same behavior—can open the door to discrimination claims.

In your evaluations, remember to use quantifiable terms. So, avoid terms that cannot be defined, like “lazy,” “unproductive” or “rude.” Rather, be specific, with specific instances, and examples, so the employee knows that he or she is not being discriminated against.

Be Careful of Retaliation

If an employee has done something that could lead to retaliation, you may want to postpone an evaluation. A negative evaluation after the employee has, for example, complained about illegal activity, or filed for bankruptcy, or made a harassment complaint, could be seen as retaliation.

And try to avoid situations where an employee may have made a previous complaint about an employee who is now doing the evaluation itself, a situation that is ripe for retaliation claims.

Questions about handling your employee evaluations? The West Palm Beach commercial litigation attorneys at Pike & Lustig are prepared to assist.

Source:

legal.thomsonreuters.com/en/insights/articles/what-legal-benefits-do-performance-reviews-offer