As a litigation attorney who for 18 years has defended companies against lawsuits by ex-employees, Patricia Eyres has seen her share of mishandled firings. Such lawsuits usually stem from discrepancies in documentation or the absence of disciplinary actions against an employee before the firing. She remembers one case in particular, in which the plaintiff, a woman and a member of a minority, sued after having been let go from her company.
"When she was employed with my client, this person had not been performing up to the standards the position required for quite a long time. When it came time for her review, the manager gave her a rating of 2 out of 5, the equivalent of 'needs improvement,'" Eyres explained. When the employee pressed the manager for reasons for the low rating, he hesitated but finally said that maybe her performance deficit was due to her having a new baby at home.
The employee didn't make a claim for harassment at that point, though she could have, but she commented to her manager's boss that the statement made her feel uncomfortable. The manager was called to task for the statement. "From that moment on, the manager was so afraid to give her any criticism that he started giving her the equivalent of 'acceptable performance' on all of her reviews," said Eyres. "Naturally, her work didn't improve, the baby became old news, and she never got the chance to improve her performance."
Later, during a general reduction in workforce, this employee was one of the people let go. "That's when she filed her action." And the plaintiff won, on the basis that if she'd been given the chance to improve her performance, she would have. "My client admitted on the witness stand that he didn't give her the constructive criticism she needed because he feared she would say he was retaliating for going to his boss, or that he would be considered sexist or racially biased."
The fact that he didn't give the employee candid and constructive criticism because of who she was ended up being the deciding factor in the ruling against the company. What he sought to avoid became the very thing that happened.
Communication is key
Eyres said this is just one case that illustrates the need for communication and documentation in dealing with a poorly performing employee. How you communicate is important too, she said. "There are just some things for which only a personal communication will do. Firing by e-mail, criticizing performance by e-mail, avoiding conflict by e-mail is a disaster waiting to happen for managers. Your words can be taken wrong. In person, your body language can give context to your message."
Maria Rodriguez is a labor and employment attorney for Silver and Friedman in Los Angeles, and is a speaker on management issues for Larta—a nonprofit think tank dedicated to business education for techies. Her clients include those from the technology sector and other industries. Rodriguez joins Eyres in stressing the need for precise and complete documentation of employee performance problems. "Unequivocally, employers generally fail to document employee issues as they happen and inevitably end up in a termination situation without anything to support it," she said.
Employers also fail to be sufficiently specific in their documentation to illustrate the problems with an employee. She suggests that documentation:
- Be timely.
- Include specific examples that illustrate the problem (e.g., if an employee has been insubordinate, include the date of the insubordination, names of others present, and exactly what the behavior or comments were—verbatim).
Steve Fox, an attorney with the Dallas firm Fish & Richardson, agrees. "Absent the taking and documenting of disciplinary actions, a jury is more likely to find that an employee was wrongfully, rather than justifiably, fired." Fox's lawyer friends like to call their favorite cases "the no-knock cases."
"That means the file is void of disciplinary action or poor performance evaluations. And yet, the employee is discharged one day without warning. These no-knock cases expose the employer to back pay, front pay, compensatory and punitive damages—not to mention attorney's fees."
Tactics to avoid
It's important that you and the managers who report to you be trained in "management" to avoid these kinds of situations. Proper training teaches those with direct reports to confront employee problems in delicate, diplomatic, and lawful ways that lead to an employee's success or to a clean termination.
Eyres suggested avoiding the following mistakes when preparing an employee evaluation.
- Inadequate preparation—Many appraisals lack attention to important details such as complete descriptions of the employee's work performance.
- Lack of clear standards—Clear, measurable standards are essential for accurate and legally defensible performance appraisals, and are the only way employees know what's expected of them. Standards should apply to specific tasks of the position, reflect acceptable or satisfactory levels of performance, be expressed precisely, focus on critical and specific aspects or features of performance, and address both measurable performance criteria (such as production goals) and elements of judgment and initiative.
- Inconsistency in ratings among supervisors—Supervisors should clarify performance standards for similar jobs to achieve a consensus regarding performance-rating definitions.
- Rating personality rather than performance—The appraisal should focus only on actions, accomplishments, and specific instances of unacceptable performance.
- Inappropriate time span—Appraisals should cover the rating period from the last appraisal. Supervisors who refer to incidents that occurred before the last appraisal are being potentially unfair to the employee.
- Inadequate observation—Supervisors who are not thoroughly familiar with all aspects of an employee's performance should not conduct the appraisal. Let supervisors know they can ask for help with appraisals when needed to avoid subjectivity.
- Inflated ratings—When supervisors are uncomfortable being candid with an employee for fear of discrimination charges, they may inflate the employee's performance rating. Also, they may think inflated ratings will cause a marginal employee to work harder to live up to them. Avoid this trap.
- Subjective language in written appraisals—Even carefully constructed appraisals may contain language that the courts could misconstrue during a trial. Even if a comment is "positive," if it references gender, age, or other characteristics, it may reveal a mixed motive. For example, a criticism of "communication difficulties due to a detectable accent" would not be acceptable.
Once you're aware of these common performance appraisal problems, you can take corrective measures to prevent them from occurring in the future. Educate your supervisors and managers about the legal liabilities their performance management practices could provoke so you can lessen your company's chances of being sued.
Toni Bowers is Managing Editor of TechRepublic and is the award-winning blogger of the Career Management blog. She has edited newsletters, books, and web sites pertaining to software, IT career, and IT management issues.