Say you manage Kevin, a 55-year-old employee whose productivity drops over the year. Instead of citing specific, measurable examples of this decline in his performance review, you note that "Kevin doesn't seem to have the energy level anymore to truly succeed in this department." Still, you rate Kevin's work as "average," the same as last year.
That example highlights two of the more common—and legally dangerous—pitfalls in writing performance reviews:
Improve your performance-review process — while avoiding the legal hazards that lurk in every review — with this interactive webinar Your Guide to Effective, Practical Performance Reviews
1. Evaluating attitude, not performance. Vague statements that attack an employee's demeanor could be interpreted as some kind of illegal age, race, gender or disability discrimination. Instead, supervisors should use concrete, job-based examples to illustrate any criticism.
In the example above, referring to Kevin's "energy level" could give him reason to complain about age discrimination. Instead, the review should have cited examples such as, "Kevin has completed three of the five major projects late this quarter and has not contributed one new product idea in six months."
For this reason, the word "attitude" should never appear in a review. Employment lawyers and courts often see that as a code word for discrimination.
2. Evaluation inflation. Supervisors too often rate mediocre employees as competent, competent employees as above average and above-average employees as superior. The problem comes when an employee is fired for poor performance yet his history of reviews tells a different story. The employee, then, has a supposed proof that the real reason for the firing was something else, maybe something illegal.
Used correctly, performance reviews can be your single most effective tool to assess past work AND set future goals. Yet poor reviews will lead to rapid turnover … low morale … and potential legal trouble.
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Case study: Liability time bombs in employee reviews
Reviews should cite specific, well-documented examples of behaviors (pro and con). They shouldn't use vague terms, such as "bad attitude" or "lazy." Here are excerpts from actual federal government employee reviews that use funny, but legally explosive, language:
- "She has delusions of adequacy."
- "I wouldn't allow this employee to breed."
- "He would argue with a signpost."
- "When his IQ reaches 50, he should sell."
- "He brings a lot of joy when he leaves the room."
- "If he were any more stupid, he'd have to be watered."
During this 75-minute, interactive webinar you and your management team will learn:
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- The 11 steps every supervisor should take to complete the review process in a legal and effective manner.
- The one legally explosive word you should avoid in every performance review.
- A checklist: Top 5 factors of a first-rate evaluation.
- Whether or not you should require employees to sign their reviews.
- The 4 steps to prepare for appraisal discussions.
- Ways to minimize the chances of legal troubles during reviews.
- Guidelines for writing reviews that grab employees' attention and improve performance right away.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- 10 Secrets to an Effective Performance Review
- Warn bosses: One wisecrack can mean trouble
- Gay employee can claim bias based on gender stereotyping
- Watch calendar if you plan to fire following FMLA leave
- Don't worry a somewhat negative performance review will cost you a lawsuit