Overview: Legally Defensible Performance Appraisals

PERFORMANCE APPRAISAL AND COMPLIANCE

Performance documentation. In general, any personnel action such as discipline or discharge may be defended from challenge if it was taken pursuant to a legitimate business justification. Poor performance is one such business justification. In any suit that challenges an adverse personnel action, the first piece of evidence that a plaintiff's attorney will ask for is the employee's past performance appraisals. If the case goes to trial, those appraisals will be enlarged and put on display for a jury to scrutinize. They will also take them back into the jury room to be reviewed in detail. It is therefore essential that performance appraisal be done fairly and consistently. 

Nondiscriminatory. Federal and state laws prohibiting employment discrimination are the main sources of legal concern for performance appraisal. Employees may allege that a promotion denial, layoff, discharge or compensation action was illegally influenced by the employee's race, sex or age. Employers typically will turn to past performance appraisals to justify the action. If performance appraisals are not well documented or inconsistently applied, however, the employer's defense is weakened or destroyed.

LEGALLY DEFENSIBLE PERFORMANCE APPRAISALS 

• A legally defensible performance appraisal system should contain the following elements: 
• Be in writing 
• Contain specific procedures 
• Specify documentation to be used and in what manner documentation is to be gathered 
• Include specific instructions for supervisors 
• Provide training for supervisors in how to evaluate and administer the system 
• Use standardized forms for related groups of employees 
• Establish objective and/or measurable job criteria 
• Be thoroughly communicated to employees 
• Be given formally at least on an annual basis 
• Evaluate specific work behavior and not personal traits 
• Periodically review the system.

Reprinted with permission. © CCH