Capture Legal and Other Benefits of Employee Performance Reviews

By: Melanie M. Dunajeski

Last month I blogged on the benefits of contemporaneously documenting employee performance and behavior issues to obtain better outcomes (  In that post, I noted that performance review ratings of “acceptable” or “meets expectations” where an employee actually has performance deficits or behavior issues can create some real problems for an employer in later discipline, demotion or termination scenarios. 

Consider the employee who has limped along from year to year,  rarely fully meeting expectations and frequently displaying behaviors that are detrimental to the company. Is there any reason why that employee should be ranked “satisfactory?”  Or, consider the employee who has been documented on multiple occasions as not meeting the expectations of the company. Is there any reason why those issues should not be made part of the performance evaluation? The answer is NO.  Further, inflated rankings such as these make it that much more difficult to deal with subsequent counseling or discipline—or even litigation.

Employers who fail to use the performance review process to make employees fully aware of their deficiencies and the improvement or change expected by the company lose not only the opportunity to get the desired improvement from the employee, but also may forego valuable defenses in subsequent wrongful discharge or discrimination claims. When an employer has terminated an employee for longstanding performance problems, the performance reviews from those time periods should mention them.

Notably, the employee review and evaluation process is among the least liked of any managerial duty—a distasteful and time consuming process that feels way too judgmental to many. However, a well designed and executed performance review process provides benefit to the company at every level.  Employees need and deserve feedback, and employers need and deserve to have their expectations met.

How can an employer improve this process?  Get comfortable with the idea that employee feedback should be an ongoing matter—coaching, compliments, corrections should all be occurring throughout the evaluation period and appropriately documented. This practice lays the groundwork for an effective review process. Invest the necessary time and resources into creating a performance review system that will maximize consistent and objective employee evaluation by supervisors.  Minimize subjective components, although any review process will have subjective components.  Set up your system to measure what can be measured and create objective criteria for supervisors to use when assessing the subjective components. An effective system ties employee performance review to the company’s policies, procedures, and goals and assesses the employee data and behavior that matters.  Supervisors must be given adequate time and resources to complete the performance review process in a thorough and thoughtful manner.   Supervisors must address deficient performance in a straightforward, uncluttered manner with expectations clearly conveyed.  Where possible, supervisors should include specific fact-based data or examples. Rankings need to be honest and uninflated.  Where the review contains bad news, it should not be sugar coated or couched in apologetic or mitigating language.  Bad news is bad news.

A good review process also includes a personal meeting between employee and supervisor, where the review is discussed, always remembering that this is a conversation, not a confrontation.  A performance review should not be used as a “last chance warning.” Give the employee an opportunity to respond to the review.  Whether the employee agrees with the review or not, get him to sign it and give him a copy of it. What is the use of a review if an employee cannot use it as a roadmap for improvement? 

An effective process also includes reviewing the reviewer—a supervisor’s proper handling of the review process should be part of their review. Periodic auditing of the whole process ensures that the reviewers are compliant with the procedure, consistent with the way that they are reviewing similarly situated employees and applying measures for compensation and promotion decisions.  Maintaining a culture of accurate, objective, and consistent performance review will always require at least some level of oversight and review.

In the end, an effective performance review system benefits the employer in many ways. Employees have a better understanding of what is expected of them and are made aware when their performance is deficient and improvement expected. The company can identify and correct deficiencies before bigger problems or morale issues result—or better yet, identify and develop high performers.  Accurate and fair performance reviews set the stage for necessary separations from employment where an employee is made aware of an issue and given an opportunity to improve. These termination decisions are neither a surprise to the employee nor unsupported in fact, and your written reviews in these instances can help you defend everything from unemployment claims to charges of discrimination.

Do you need help with your performance review system?  Contact the employment lawyers at Drewry Simmons Vornehm LLP.