What Factors Make Performance Appraisals Legally Defensible?

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One reason companies use performance appraisals is to have some legally defensible means of making employment and job decisions that will a) discourage frivolous law suits in the first place, OR b) ensure the company is likely to win a court decision if the law suit goes to court. Performance appraisals can provide some protection provided they are done properly. If they are not done properly, then they become weapons for the other side in court cases, particularly in the areas of discrimination accusations and EEOC complaints.

Keeping in mind that it is always the courts that decide, and they decide on the merits of a particular case, and that this should not be construed as legal advice, what are the characteristics of performance appraisal systems that are legally defensible?

  • employees are involved in establishing performance standards for their position
  • standards used are relevant to the essential elements of the job, and are clearly documented in writing
  • employees are informed of, understand, and sign off on critical job requirements and expectations before the appraisal
  • the system should not be based on comparisons between employees (eg. curve)
  • the performance appraisal is done annually and documentation of performance discussions is done properly
  • employees are allowed and encouraged to add their comments and responses any performance appraisal documentation
    managers who do performance appraisals must be provided with training
  • employees are informed of any performance problems and issues way in advance of the formal performance reviews, and given an opportunity to rectify the problems.


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Bacal & Associates was founded in 1992 by consultant and book author, Robert Bacal. Robert's books on performance management and reviews have been published by McGraw-Hill. He is available for consultation, training and keynote speaking on performance and management at work.


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  • Performance management and appraisal MUST be a partnership between manager and employee where BOTH benefit.
  • Performance management can be the lever for improved employee engagement.
  • The review process is the LEAST important part of performance management
  • If managers aren't managing employee performance, why are they there?

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