Employment Law's Dirty Little Secret
2012 will mark my 25th year serving as general counsel to small-to-medium-sized businesses. During that time, I have handled innumerable employment-related inquiries. For the first part of my career, my advice concerning personnel files and the building of a defensive wall against potential employee lawsuits was conventional, parroted established wisdom, and was dead wrong.
You see, it used to be that when a business owner called and asked me if she would be in the clear if she fired someone, I would inevitably ask about the existence and contents of performance reviews. The conventional wisdom being that a paper trail of performance reviews in the file would bolster the company’s defense against a discriminatory or retaliatory firing.
But I began to notice something curious about these supposedly these company-saving performance reviews. 99% of the time, the performance reviews were entered into evidence, not by the company, but by the disgruntled former employee.
The reason? The performance reviews, even those preceding the firing decision by just a few months, would inevitably rate the soon-to-be-fired employee as “meeting expectations” or “above average.” Not one item of the laundry list of the employee’s grievous deficiencies could be found anywhere on the company’s own evaluation forms. What’s worse, the presentation of these deficiencies in court by the company would invariably have to come from the person who signed an adequate, if not glowing, performance review immediately prior to termination.
The reason? The vast majority of supervisors will check any box necessary to avoid the unpleasantness of confronting an employee with a less-than-positive evaluation.
Last week, I attended a seminar presented by Garold (Garry) Markle of Engergage echoing and building upon this theme. Markle compared the performance review process to one in which the supervisor tells the employee “you hit yourself in the head with a hammer; I’ll hit you in the head with a hammer, and then we’ll see if both blows felt about the same.”
Instead, Markle emphasized the need for establishing a frank coaching dialog with employees on the things that really matter -- both to the employee and the business.
Now, I disagree with one of Markle’s apparent assertions that the coaching be conducted primarily on an annual basis. I would prefer to build a system in place for a continuing dialog.
Where I wholeheartedly agree with Markle is that conventional performance reviews -- whether conducted because “you’ve always done them in the past,” “that’s the way everyone does it,” or “my lawyer insists that I paper the personnel file” should be tossed in the trash never to see the light of day again.
In place of performance reviews, work to install something that’s rationale, true, and doesn’t come back to bite you in court.
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