These were pulled by Business Management Daily from actual performance reviews given to federal employees:

• “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.”

Here are tips from the book “It’s Never Too Late to Be What You Might Have Been,” by BJ Gallagher:

Giving

• Provide examples of the problem behavior.  For instance, “You shouted at two customers yesterday.” That’s better than “You have a bad attitude with customers.”
• Solicit questions and comments.  Be wary of the employee who broods quietly. That’s often a sign of resentment, not acceptance.  Ask leading questions that draw the employee out and give you some clues to the employee’s thinking. Example: “Tell me what you disagree with and why.”
• Get a commitment to change.  And try to put that commitment in measurable terms. Example: “So, you agree that you’ll be on time every day for the next month.”
• Schedule follow-up. Make it clear that this isn’t a one-and-done deal — that you’ll be checking back to see that there’s been a change and all commitments have been met.

Receiving

• Ask for or acknowledge examples. If the boss says, “I hear you’ve missed a few deadlines lately,” either ask for specifics or acknowledge that, yes, you’re guilty as charged.
• Ask for a chance to do better. Outline what you’re going to do to improve and when you’d like the boss to revisit your performance.
• Say “thanks.” Look at it this way: Negative feedback is a sign that someone cares and is interested in your improvement. Yes, there do seem to be those times when the feedback seems pointless. Still, a thank you is in order.

No, employees aren’t necessarily suing over bad reviews. Instead, they’re using the reviews to support charges of discrimination, retaliation, harassment and a slew of other expensive accusations.

Typical – and expensive – case
Here’s how one typical caseturned on a review and what you – working with your company’s supervisors – can do to help shield against charges like these.

The details: An employee got fired after receiving a string of bad evaluations from her supervisor. Not exactly a rare occurrence. What was rare: She had previously complained about discrimination.

Using the performance reviews as evidence, she won $1 million in damages. The court saw the reviews and her firing as retaliation for those complaints. How did the company and her supervisors get tripped up?

Employment-relations expert Sunil Vatave points out the two danger
signs that get the attention of courts:

1. A sudden downward change in review ratings that followed the employee’s complaint. The plaintiff had received several good performance reviews before the group of bad ones. The judge started asking why – which led to the second danger sign.
2. Vague review standards too loosely tied to actual performance.

What’s vague? Typically, standard such as “the ability to get along with co-workers” is one. In other words, it’s something that’s hard, if not impossible, to measure .

Vatave’s analysis is that the organization’s HR manager could have prevented the problem and saved the supervisor from creating the mess.

Closing the gaps
First, realize the cure doesn’t involve your haggling with supervisors over setting standards and handling reviews. You wouldn’t want to do that
anyway, and most supervisors would resent it.

You can ask to take a look at performance  reviews before they’re official, to make sure they’re in compliance with laws and company standards (while making it clear to supervisors you’re not getting involved
in the actual review).

In your capacity as the HR manager, try to:

• Make sure crucial standards are explained and measurable. It’s reasonable that a supervisor might mistakenly list “getting along with others (nonmeasurable) as a key component, when what’s really meant is “completes team projects on time” (measurable). Pointing out those differences can save a lot of aggravation later on.
• Check that the standards are applied equally to all employees in similar positions. A gap in how standards are applied can become an expensive loophole in court. Judges will want to know why a standard was applied one way to an employee and another way to another employee.

You’re in a great position to spot such gaps, particularly if the workers involved are supervised by different people. Again, you can save a lot of trouble just by pointing out the problems and guiding supervisors .

Cite: Settlegoode v. Multnomah School District 1.

(Sunil Vatave is with the firm Technical Difference, Inc., in Bonsall, CA.)

Her story:

The tough message came down from upper management: We were in a dogfight with our competition, and every part of our operation – including performance reviews – had better contribute to improving our operation.

Our performance-review process had been pretty much by-the-book: once a year, with a raise determined by the rating in the review.

It was clear, however, that the reviews weren’t leading to improvement. We decided that cosmetic changes weren’t going to work. We had to take some bold steps. How bold? How about dumping annual reviews altogether? We did that – and more.

Shorter is better
When we made the decision to get rid of annual reviews, we knew we had to find a results-oriented system to replace it.

Our answer: monthly reviews.

We didn’t call them that; the new name was “monthly goals evaluation.” Yes, monthly. That gave us quicker and better information on when we needed to change and make improvements in any part of our operation.

OK, so we knew how often we were going to do appraisals and why we were doing them that often. But we also had to figure out what to appraise and how to measure it.

Measurement matters
When we analyzed our performance standards under the old system, we realized most of the standards were just too soft – there was little or no way to measure improvement or dropoff. We needed numbers – hard, realistic numbers.

That’s what we told all our supervisors. They:

• had to come up with monthly numerical goals for each employee, and
• involve each employee in setting those numbers, so no one would feel as if the goals were dictated.

One more thing we told them: No one will suffer for not making a numerical goal. Instead, we’ll look at why the goal wasn’t met and what we need to do to meet it. Then we’ll determine raises based on overall progress during the year.

The results
Did it work? Well, after a year under the new system, we increased revenues and surpassed our original goals for profitability.

Further, we didn’t have to lay off anyone. We found our increased productivity allowed us to do more with fewer people, meaning we were able to use attrition to cut employment.

And now, monthly goal evaluations seem as natural to us as the sun rising every day, rather than some big change.

Elizabeth Duffrin, Reno, NV

The scenario
“Sandy, you gotta help me,” said supervisor Tom Bartley. “I really screwed up.”

“What’s the deal?” asked HR manager Sandy Gomez, motioning for Tom to take a seat. “Problems in the department?”

“Yeah, you could say that. It all boils down to this: I promoted the wrong person, and I can’t think of a good way to fix the situation.”

Things didn’t go as planned
“I remember when you were agonizing over who to choose – Rebecca or Trish,” Sandy recalled. “I guess Rebecca hasn’t worked out as well as you’d hoped.”

“Boy, that’s an understatement,” said Tom. “She just can’t seem to get the hang of her new responsibilities. And the more she screws up, the more defensive she gets. And then everybody in the department starts getting an attitude. It’s a mess.”

“What’s Trish’s reaction been?” Sandy asked.

“She hasn’t said a word,” Tom answered, “but I’ve caught some of her facial expressions when things have gone wrong.

“She knows we can’t continue to operate like this. And the other employees know it, too.

“I’m going to have a revolt on my hands if I don’t do something soon,” Tom concluded. “The question is, just how am I going to finesse this? I’d hate to lose Rebecca, but she’s making everybody’s life miserable.”

If you were Sandy, what would you advise Tom to do next?

Ron Wolfgang, HR manager, South Bend, IN
What Ron would do: I’d have Tom set up a 30-day performance plan for Rebecca. It’ll need to be clear and concise, so Rebecca understands what she needs to improve on. She also needs to understand that if she doesn’t make improvements by the end of 30 days, there will be some changes.
Reason: I hate to not give employees an opportunity to improve their productivity. So giving Rebecca a month to turn around her efforts is the best remedy. But after that, we can’t afford to have her continue performing poorly.

John Steepy, HR manager, Rochester, NY
What John would do: I’d make sure that Tom has documented all of Rebecca’s shortcomings. If so, either demotion (if she agrees) or termination would be my recommendation.
Reason: As long as there’s documentation, a demotion or termination is the natural response to an employee not pulling his or her weight. Morale and productivity can’t be sacrificed.

Jean Yarger, HR manager, Grafton, WI
What Jean would do: First, I’d have Tom ask Rebecca how she thinks she’s performing. If she admits to her poor job performance, I’d suggest either handing Rebecca her old job back or lightening her duties in favor of more work for Trish. If Rebecca doesn’t realize she’s performing poorly, I’d advise Tom to set specific performance goals for her.
Reason: It’s always wise to see how an employee rates his or her own production before taking drastic measures. It’s a safeguard against a possible lawsuit. After that, you look for a solution that’s in the best interests of the company.

Question:
Our performance-appraisal system is based on “doesn’t meet,”  ”meets” or “exceeds” expectations criteria. We’re thinking of switching to a 1-10 scale that supervisors can use to rate employees.

Any thoughts on whether one system is better than the other?

Answer:
From the standpoint of being able to legally defend an appraisal, the doesn’t meet/meets/exceeds system is generally better. So says James Loots, a labor-relations attorney. But of course you have to have specific criteria on which to base the rating, meaning you have to define what productivity or quality criteria are used for each term.

The problem with a 1-10 scale is that one supervisor may give an employee a “5,” for instance, and another a “6″ but be unable to explain why or may be using shades of difference that depend on “feel” rather than measurable markers.

In that case, you could have a legal problem if the person with the lower score is a minority or pregnant or falls into some other bias-prone category.

Question:
Our CEO wants me, the HR manager, to sit in every time a supervisor gives an employee a below-standards performance appraisal. I would serve only as a witness for what’s said – such as agreements about problems and ways to improve.

What do you think about the idea? Should this be an HR function?

Answer
Not a bad idea, answers Jonathan Segal, an employment-law attorney with the firm of Wolf, Block, Schorr and Solis-Cohen.

Maybe, however, you won’t want to limit participation to only the bad reviews. Just sitting in on the bad reviews makes HR look like the Grim Reaper, who only shows up for bad times (such as terminations or disciplinary actions). That’s why you may want to consider sitting in on all reviews. Of course, there are only so many hours in the day, and HR can only do so much, but being at the good reviews, too, would prevent a negative image of HR.

You can twist yourself in knots trying to dodge a lawsuit, but it really comes down to the avoiding the Big Six Mistakes.

Whitney Warner, an employment attorney with the firm of Moody & Warner, says these are the problems that come marching into her office most often: 

Not giving a reason for firing. You’re an at-will employer, so you can fire at will, right? Wrong. Most employees think they’re wonderful workers, and if they get fired for a mysterious reason, they’ll make up their own reason – or their lawyer will. The reason for termination needs to be clear.

Firing an employee for bad performance when the employee has good performance reviews. This is the cousin to “not giving a reason for firing.” Supervisors need to understand that they’ll need a poor-performance paper trail if they want to fire someone. Or else a judge will smell something fishy.

Poor timing. (a) An employee files an internal complaint about the employer or a supervisor, and then (b) shortly after is disciplined for a supposedly unrelated event.  It won’t be hard for a lawyer to connect the dots in court between (a) and (b). Employees who file complaints can be disciplined, but the supervisor better have the documentation in order before making the move.

Delayed internal investigations. When employees file complaints, they want them thoroughly investigated and they want it done now. If you can’t investigate immediately (because, for instance, a key player is on vacation), let the complaining employee know why and when the investigation is likely to begin.

Improper response to an EEOC charge. If you’re contacted by the Equal Employment Opportunity Commission regarding an employee complaint, respond promptly and courteously – and treat the complaining employee courteously, too. If you’re tardy in your response or treat the employee like a leper, expect to hear about it in court.

Failing to follow your own policies. You can have the best policies and training in the world – and indeed some companies have used that as a defense against a complaint. But you better be able to show that your supervisors followed those policies and applied the training.

Bonus: How to lose a lawsuit
Getting sued is bad enough, but after a lawsuit is filed, employers can make the situation worse: Being unprepared for depositions, an inability to locate key documents and responding “I don’t remember” to questions about key events will sink you every time. All of that makes good record-keeping even more important.

The scene 
“This is enough to make me want to shut down our Internet connection,” VP Paul Barker announced as he stepped into the office of HR manager Lynne Argos.   

“Someone downloading something they shouldn’t?” Lynne  asked.   

“Not exactly,” Paul continued. “But this is the third time this month someone’s walked into a performance review with ‘average’ salary figures taken off some Web site.”

“Let me guess,” Lynne  said. “Those figures always show the person should get a big raise, right?”

 Unrealistic figures?   
” You got it,” Paul answered. “Then, the supervisor has to defend pay scales here, and it gets ugly from there.”  

Lynne turned toward her computer and punched in a URL as she spoke: “I’ve looked at some of those salary sites. Most of them seem off-base to me, from what I know of pay rates for various jobs. Here, this one, for instance, shows customer service people making about 30% more than what we pay – that’s unrealistic. They obviously do that to get people to start job-hunting at those sites.”   

“Sure, but no one wants to believe that,” Paul groaned. “They’d rather think that we’re low-balling them on pay.”   

“It’s bad for business if everyone walks around thinking that way,” Lynne  said.   ”I’m concerned about that,” Paul agreed. “We pay people fairly. But I don’t know how to change their perception.”   

If you were Lynne, what would you recommend to Paul?   

Teresa Prenger, personnel manager, New Bremen, OH 
What Teresa would do: In this situation,  you have to provide employees and  managers with some information on how  you arrive at salaries. In our case, we use data from regional industry associations.  That’s a lot more accurate than what you’ll get off a Web site. 
Reason: Even your managers may not know how salaries are set at your company,  so it doesn’t hurt to make sure everyone’s  aware of the process for determining pay.  That can overcome the false impression they’re getting. 

Allison Donley, HR manager, West Grove, PA 
What Allison would do: That can  be difficult, especially if you’re a small  company, like us. We try to explain that we offer other benefits besides salary – such as  flexible hours and a family-friendly  atmosphere – that make up for what  the big companies might be paying. 
Reason: You need to highlight the  positives of working for your company  and explain that every company, even the  higher-paying ones, have their negatives.    

Linda Russo, HR manager, Holden, MA 
What Linda would do: I can tell you how  we handle it.  Once a year, we provide employees with  a statement that totals the dollar value of  their benefits and salary. That’s our way of showing them what they’re really making -  salary plus vacation, sick time, retirement  contributions, etc.
Reason: I’m skeptical about those salary  figures on the Web, but I suspect in some  instances they’re including the costs of  benefits, too. When employees see how our figures match up, they get a better  picture of what we offer. 

Here’s the required list of questions they should carry into the review, and supervisors should be prepared to answer, courtesy of Change Dynamics Consulting, a career-coaching firm:

What areas do I need to develop?
No one’s perfect. Admitting that and asking for an independent analysis of your needs is a great first step toward making the review successful.

What are my strengths?
An employee and a boss could have very different views about strengths. If the two people are on the same page, great. If they’re not, they both need to be aware of the differences.

What are my options for growth?
Even if someone’s been with a company 20 years, this is still a good question. Situations and opportunities change, and employees need to be aware of how they can use the change to their advantage.

What can I do to help you?
Don’t make it all about you. The review is a good time to find out what you can do to make the boss’s life easier.

What should be my most important priority?
Just about every job has that one big task. This is the time to give the boss a chance to put flashing lights around that task so that priorities are straight.

Can I take on this responsibility?
Got your eye on a particular responsibility and think you’re ready to take a crack at it? Let the boss know.