Amid cuts in salary and benefits, disgruntled employees are using a new lawsuit weapon, one that’s probably sitting in every supervisor’s file drawer: the standard written performance review.
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:
- 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.
- 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.)
