By Steven B. Schwartzman, Esq.

•"This lady has delusions of adequacy."                       communication between employees and managers, and
                                                              provides an outlet for employees to air their
•"This employee should go far - and the sooner he             grievances. Efficiency can be increased by giving
        starts, the better."                                  employees the opportunity to correct problems before
                                                              they escalate. Also, employees who know that their
•"This employee is depriving a village somewhere of           performance is consistently documented and included
        an idiot."                                            in their personnel file may be more likely to forgo
                                                              litigation. Of course, a program of performance
         The above statements are rumored to be from          evaluations may be a double-edged sword. An
actual employee performance evaluations. Employee             employee who is fired for poor performance may have
evaluations not only are an essential management tool,        a good shot at winning in court if the employee can
but they can be an effective weapon in deterring              show a series of satisfactory performance appraisals.
employment litigation, or defending your business if
you are sued. Of course, managers and supervisors                       A new employee should receive a
should be trained in the basics of evaluations, or else       performance evaluation fairly soon after he/she is
you may wind up with comments like the ones above -           hired. It is easier to correct performance deficiencies
- comments which are not only ill-advised, but which          at the outset, before they become ingrained problems.
actually may encourage litigation instead of deterring        The initial evaluation should go hand-in-hand with the
it.                                                           end of an employee's introductory evaluation period.
                                                              Thereafter, evaluations should be conducted on a
          Even smaller businesses can benefit from            consistent basis. However, be careful not to make
having a formal evaluation program. An evaluation             promises you cannot keep. As a practical matter, a
program allows you to document performance-related            promise to evaluate each employee before his/her
problems. As most businesses have learned, the three          anniversary date is not always possible.
most important factors in defending an administrative
charge or lawsuit are documentation, documentation                      Make certain that the evaluation criteria is
and documentation. A record of evaluations will               uniform and based on objective concerns. The
refresh your managers' recollections and establish your       appraisal form itself is very important and should be
efforts to work with an employee. It is more difficult        periodically reviewed by counsel. Be careful to steer
to terminate an employee for poor performance when            clear of "personal opinion," "belief," or "conjecture."
you have never conducted a performance evaluation or          Supervisors should not inject subjective bias into the
documented how an employee is failing to meet your            evaluation process. All performance criteria should be
business' expectations.                                       reasonably related to the employee's job. If the
                                                              evaluation is unsatisfactory, be prepared to offer the
         Many employees are consistent under-                 employee concrete ways in which he/she can improve.
performers, yet they may never violate any particular          Be careful that you do not appear to be setting up an
work rules. If the only time you record problems in an        employee to fail or merely "building a file" by
employee's personnel file is when the employee makes          establishing unrealistic goals or timetables.
a mistake or when you issue discipline, the employee
may go on for some time with no record of how he/she                    Supervisors should be trained in how to give
is under-performing. If the employee is a member of a         fair, honest and constructive appraisals. They should
protected class, terminating him/her may be                   make certain that nothing they say in an evaluation
troublesome if you have no record of under-                   violates state or federal equal employment opportunity
performance. Courts and agencies may assume that an           laws. They also should avoid the tendency to group all
employee was performing satisfactorily unless there is        employees as "satisfactory" or "meets expectations."
evidence to the contrary.                                     While there may be a reluctance to give employees bad
                                                              news, without laying a foundation you will have a
                                                              harder time terminating poor performers. Also, a
         A program of regular evaluations increases           supervisor should carefully review an employee's prior
reviews. If the same criticisms are applicable, they
should be mentioned again, otherwise the employee
may think they are no longer in issue.

          Finally, make sure that an employee signs
his/her review. Employees often will claim in court
that they did not receive a particular evaluation. The
employee should understand that his/her signing of the
review does not mean that he/she agrees with
everything in it, but only that the employee has been
presented with the evaluation and that it has been
discussed. An employee may be more willing to sign a
review where the employee has had an opportunity to
add his/her comments.

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