Legal Issues In Performance Appraisals: Things You NEED To Know

Top : Legal Issues and Labor Law

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The Busy Learner's Kit For Making Performance Management and Appraisal VALUABLE: Walking The Path Together by Robert Bacal

One of the oft cites reasons to have a performance review system in place is to protect companies from lawsuits from employees, most notably, claims of discrimination (EEOC) complaints.

The reasoning goes like this. If an employee is disciplined, not promoted, or fired, unless there is documentation of poor performance that can be introduced in a court of law, it's much easier for the employee to claim his "punishment" is a result of discrimination, particularly if he or she is a member of a protected class.

However, it's not quite that simple, so here are some points you need to know, based on a review of legal issues and court cases:

Essentials On The Legal Issues Associated With Performance Reviews

  • Since each legal case is determined on it's own individual merits, and different courts, and judges apply the laws in their own ways, there's lots of inconcistency in the case law. What that means is the outcomes for similar cases may be quite different, making the link between court decisions and performance reviews muddy.
  • While it is true that documentation (notice, NOT performance reviews) CAN be useful in defending against a law suit, much depends on the QUALITY of that documentation. Best are records that include specifics of employee misconduct and failure to perform, and NOT ratings. Specifics in the documentation is essential, and often ratings don't accomplish that.
  • Documentation of poor performance, in and of itself, is not sufficient protection. Along with the documentation, there needs to be evidence of COMMUNICATION with the employee. That's why any documentation needs to be signed by the employee, as an acknowledgement that he or she has been suitably informed.
  • Also, it helps to demonstrate that the manager and company have taken any and all possible steps to help the employee improve -- reasonable effort. That, too, must be documented: i.e. a performance improvement plan, efforts at coaching, opportunities for skill upgrades and training.
  • POOR documentation, poor communication can be worse than nothing, and the system you use must hold up in court. While there is precedent for what works and doesn't, remember that what one "court" determines is good documentation may, in fact, not be in the eyes of another court.


Legal Issues On The Use Of Performance Management To Defend Against Law Suits

Book Review: Performance Appraisals: The Ongoing Legal Nightmare -

By Gurjeet Dhillon - This is actually a book review, but there's some content you can read. The book is expensive. Viewed 574 Times )


By Edward Ward - PDF of a more formal research paper that looks at legal issues and appraisal. Includes a review of case law. Great! Viewed 597 Times )

Performance Appraisals in a Legal Contents

By Cindy Miller - A performance appraisal itself may become the target of a lawsuit. Indeed, no evaluation system is completely immune to the risk of litigation. Even a well-designed system can subject an employer to various liabilities if it is poorly implemented or applied in an inconsistent manner. If they are well written and consistent, appraisals can support disciplinary or termination decisions. However, if poorly implemented they can support the plaintiff's position. As courts continue to carve exceptions out of the once solid 'at-will' doctrine, employers are facing escalating requirements for proof of legitimate business reasons for many personnel actions. The employee performance evaluation has become the cornerstone of the employer's defense against discrimination and wrongful termination charges and, as a result, has become one of the manager's most important responsibilities Viewed 889 Times )

Employee Performance Appraisal Process: Honesty is the Best Policy by Shawn Smith: The Sideroad

By Shawn Smith - Touches on legal issues, but here's the important part. Reviews that are "dishonest" even out of a desire not to hurt an employees feelings, can be worse than NO reviews at all when it comes to legal challenges. Viewed 676 Times )

Are Your Performance Appraisals Setting You Up for a Lawsuit?

By Steve Bruce - An overview of what makes a performance appraisal legally defensible, and what puts you in peril. Also contains a nifty little procedural checklist. Viewed 906 Times )

What Factors Make Performance Appraisals Legally Defensible?

By Robert Bacal - Performance appraisals need to be done properly so they are legally defensible and will stand up in court if challenged. Here's how to make them legally ok. Viewed 1889 Times )

Failure to Document Performance Issues Dooms Employer's Defense to Age Discrimination Claim : Employment Discrimination Report

By CHRISTINA STONEBURNER - A recent Michigan case demonstrates the dangers of not following the above advice. In Chlystek v. Donovan, the Court denied the employer's motion for summary judgment even though the employer claimed that the reason a younger employee got a promotion was because there were performance problems with the older employee Viewed 697 Times )

Rights of Employees

By ACLU - Today, most Americans are more vulnerable to having their rights violated by their employers than the early Americans were to having their rights violated by the government Viewed 1768 Times )


By OPM - Although the case law on performance management is probably more plentiful than in any other area of personnel management, there have been many twists and turns in its development, which may prompt the researcher to feel that he or she is entering a labyrinth. This indepth article goes through it in detail Viewed 2347 Times )


By Stanley B. Malos, J.D., Ph.D. - An extensive review of literature and court cases relating to performance appraisals, the law, and liability. Most Read Viewed 5207 Times )

Avoiding Successful Lawsuits by Non-Performing Employees

By Patricia Eyres - Learn to use performance appraisals PROPERLY to avoid dismissal or discipline related law suits. Viewed 3141 Times )

Legal Aspects of Performance Appraisals

By Ruth Mayhew - Labor and employment laws don't mandate performance appraisals, but they do prohibit discriminatory employment actions based on nonjob-related factors. So, if your company develops an evaluation process or a performance management system for conducting performance appraisals, train your supervisors and employees on the fundamentals of job evaluation. Among those fundamentals or core elements of effective performance appraisals are consistent application, unbiased evaluation and timeliness Viewed 1096 Times )

The Significance of Progressive Discipline and the Duty to Act Honestly in the Manner of Dismissal

By Todd Weisberg and Jesse Mack - Court case where an Ontario court emphasizes the importance, or necessity of using progressive discipline, and following its own employee handbook. Not necessarily applicable to other court cases or jurisdictions, of course. Viewed 228 Times )

Care is essential in the firing process

By Timothy S. Bland - Termination of firing of an employee can create legal problems. Learn how important it is to protect you and your company from legal action, and how a performance appraisal done properly can protect. Viewed 2316 Times )

No summer break for Courts of Appeal

By John Rukavina - Performance appraisal issues are hitting the courts. This article discusses some labor law and performance appraisal cases before the courts. Viewed 1496 Times )

Venable v. Vernon, (03-230) 02/17/2004 Case Law - Performance Appraisal

By na - Text of decision from the North Carolina Court of Appeals on unlawful dismissal that involves performance appraisal issues. Viewed 1068 Times )

Employee Performance Appraisal Process: Honesty is the Best Policy by Shawn Smith: The Sideroad

By Shawn Smith - Learn why it is important that managers are open, honest and accurate in their appraisals of employees. One reason: To be overly positive or negative may invite legal problems. Viewed 1850 Times )


By Stanley Malos - In this chapter, I offer a foundation for helping to recognize aspects of performance appraisals that are likely to wind up in litigation, and for modifying those that have caused problems for employers in a variety of legal disputes. I begin with an overview of performance appraisals as they relate to the nature of the employment relationship. Most Read Viewed 9178 Times )

Decisions Of U.S. Court Of Appeals On Performance Reviews

By Jon Werner - Comprehensive review of court of appeals cases to look at what the COURTS decide on valid and invalid performance reviews. What's important? Due Process and fairness. Heavy reading. Viewed 657 Times )

Hiring and Firing Employees: Don't Force At Will In Writing

By Dave Bowman - In a drive to regain an age-old prerogative, organizations across the U.S. are insisting that employees sign a statement that packs a powerful economic punch. The statement gives the boss the right to fire workers at-will, for any reason or no reason. Viewed 1714 Times )

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Pages Updated On: 6-Sep-2016 - 15:26:57

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