Performance Evaluations: Legal Point of View

1. Performance Evaluations: Legal Point of View Anita Lichtblau, Esq. Executive Director/General Counsel CAPLAW June 2007 www.caplaw.org

2. Community Action Program Legal Services, Inc. 2007 2 Why do written evaluations? Accountability Improvement of job performance Basis for merit pay raises Requirement -- Head Start regulations or other programs CAA�s Personnel Policies Collective bargaining rule Defense of legal claims by employee

3. Community Action Program Legal Services, Inc. 2007 3 Why written evaluations? Improve job satisfaction by showing interest in progress Guide supervisors in planning employee's training. Assure considered opinion of performance and focus maximum attention on achievement of assigned duties. Determine and record talents, skills, and capabilities Plan personnel moves that best utilize ee's capabilities. Provide opportunity to discuss job problems/interests Assemble substantiating data for use as a guide for wage adjustments, promotions, disciplinary action, and termination. �

4. Community Action Program Legal Services, Inc. 2007 4 How are evaluations used to defend discrimination claims? Record of legitimate, non-discriminatory reasons for action against employee Documents performance deficiencies Evaluations must focus on job-related areas, not stereotypes based on protected classes Record of superior performance, qualifications of other employees given promotion or not terminated

5. Community Action Program Legal Services, Inc. 2007 5 Laws prohibiting employment discrimination Title VII of the Civil Rights Act of 1964 May not discriminate in any aspect of employment on basis of race, color, religion, sex, pregnancy, or national origin Americans with Disabilities Act Age Discrimination in Employment Act Equal Pay Act of 1963 Uniformed Services Employment and Reemployment Rights Act State laws

6. Community Action Program Legal Services, Inc. 2007 6 Tort liability arising out of performance appraisals Negligence � Breach of duty to conduct evaluations fairly and in good faith Superior evaluation despite supervisor�s knowledge of imminent termination Untruthful positive evaluation communicated to another employer causes harm to others Defamation/misrepresentation Fair evaluations deter wrongful termination claims

7. Community Action Program Legal Services, Inc. 2007 7 Best practices for evaluations � appraisal form Develop appraisal form based on job requirements and description Show employees form at start of evaluation period Develop rating scale Require comments for very high and low ratings Rank importance of job functions being evaluated Include open-ended questions and room for comments Include �areas for improvement� section Require signatures, dates, of supervisor and employee

8. Community Action Program Legal Services, Inc. 2007 8 Electronic Appraisal Systems Web-based services Intra-organization electronic files Directory of on-line systems and software: www.capterra.com Obtain on-line quotes from vendors Access to files by employer and employee Confidentiality

9. Community Action Program Legal Services, Inc. 2007 9

10. Community Action Program Legal Services, Inc. 2007 10 Best practice - training Train evaluators Written instructions Group training sessions Basics of employment discrimination law and comments to avoid Be honest � don�t sugarcoat or ignore problems Include objective factual comments with examples, not conclusory unsupported opinions based on stereotypes Apply performance criteria consistently

11. Community Action Program Legal Services, Inc. 2007 11 Best practice:  regularly scheduled evaluations Conduct written evaluations at least annually, on regular schedule More frequently for new employees Completing timely, accurate evaluations should be part of performance measured for supervisors

12. Community Action Program Legal Services, Inc. 2007 12 Best practice � Tell the Truth! Inflated evaluations deprive employee of opportunity for improvement and sets up employee for failure Vaughn v. Texaco, 918 F.2d 517 (5th Cir. 1990) Negative appraisal supports employer�s stated rationale for adverse action � bad performance Positive appraisal suggests poor performance wasn�t true reason for adverse action; it was only a justification employer came up with at time of adverse action or when complaint brought to cover up true discriminatory reason -- PRETEXT

13. Community Action Program Legal Services, Inc. 2007 13 Best practice: Avoid unjustified sharp drops in evaluation Sharp drop in performance rating, especially right before adverse action, may not be believable unless supported by specific evidence of change in performance Thomas v. Exxon, 943 F. Supp. 751 (S.D. Texas 1996) Could suggest discriminatory intent, especially if right after return from pregnancy or medical leave, or conducted by new supervisor with personal bias

14. Community Action Program Legal Services, Inc. 2007 14 Best Practice: Use Objective Terms Avoid subjective comments as much as possible Use objective criteria and descriptions Focus on �behavior-oriented� appraisals versus �trait-oriented� appraisals Use job description as basis for responsibilities, update as necessary

15. Community Action Program Legal Services, Inc. 2007 15 Best Practice: differentiate among employees and skills Avoid tendency to rate all or most employees as �average� Praise (and reward) those who truly stand out Don�t rate �good� employee highly on all competencies unless justified; review skills and talents independently

16. Community Action Program Legal Services, Inc. 2007 16 Best practice: comments to avoidPrice Waterhouse, 490 U.S. 228 (1989) Woman considered for promotion was: �macho� �overcompensated for being a woman� objected to her swearing only �because it�s a lady using foul language� advised to �walk more femininely, talk more femininely, wear make-up, have her hair styled, and wear jewelry.�

17. Community Action Program Legal Services, Inc. 2007 17 Best practice: more comments to avoid �Over the hill� �Old style management� �Need some new blood� More examples :

18. Community Action Program Legal Services, Inc. 2007 18 Best practice: unbiased evaluators Caution evaluators against stereotyping based on race, sex, etc., or any other basis Evaluate based on actual performance Don�t use evaluators with a personal bias against employee, or reason to judge unfairly, and don�t base evaluation on comments from biased persons

19. Community Action Program Legal Services, Inc. 2007 19 Best practice: more than one evaluator If possible, two or more people with personal knowledge of employee�s performance should separately evaluate Alternatively, or in addition, supervisor of evaluator(s) should review and sign appraisal Provides cross-check on evaluation

20. Community Action Program Legal Services, Inc. 2007 20 Best practice: meet with employee Ask employee to complete evaluation beforehand? Give employee opportunity to comment Work together on plan for improvement Reasonable short-term and long-term goals Require employee to sign and date, even if s/he disagrees

21. Community Action Program Legal Services, Inc. 2007 21 Best practice: Right to review unsatisfactory evaluation Employee should have right to review by higher authority Direct supervisors and higher-ups should consult and communicate reasons for evaluation

22. Community Action Program Legal Services, Inc. 2007 22 Best practice: confidentiality All evaluations, particularly negative ones, should be disclosed within the organization only to a very limited group of people, on a need to know basis. Any requests by third parties for evaluations should be reviewed carefully and only disclosed if required or authorized by law

23. Community Action Program Legal Services, Inc. 2007 23 Best practice: monitor evaluations HR reviews evaluations to ensure against: discriminatory comments consistently poor ratings for one group of employees, such as minorities consistently superior ratings for other groups of employees, such as non-minorities �inflated� appraisals, including rating all employees as �middle-of-the road�