November 2019 Volume 1

OPERATIONS & MANAGEMENT

overlook or minimize the areas where the employee did not meet expectations. It’s not fair to him -- how will he have the opportunity to improve if he doesn’t even know where he fell short? And it’s not fair to his co-workers (including the supervisor) who have to deal with the performance issues daily. You also can’t play favorites and should look out for inherent biases. And, where possible, you should provide objective goals for going forward (that’s where the performance review document itself really can make a big difference). Finally, supervisors need to make sure the reviews are internally consistent -- especially if you use a numerical system along with a place for comments. Too often, a comment may show some room for improvement, but the numerical ranking does not. Not only does this send a mixed message to the employee, it has the potential to be used against you later on. So why does all this matter? It matters because in decisions involving that employee -- whether they be about promotions or discipline/termination -- the first thing you (or your advisor or opposing counsel) will want is “the file.” My Target friend may think that his employee is not meeting her performance goals. Or only meeting them half the time. And he may even be right. But, if contemporaneous documents either don’t support that conclusion or directly contradict it, what do you do? Explain that your documents are inaccurate? Or even not quite right? No answer is ideal, and the inconsistency is likely to diminish your own credibility in the eyes of a judge or jury. It also can open the door to the argument that your reasoning is really pretext for some illegal reason. For example, a complaining employee (or former employee) may say that the documents prove that the reason being offered for my termination/ discipline is not the real reason, and that action actually was taken because of my gender, age, race, disability, religion [insert protected characteristic here]. Plus, and more practically, you are spending time and resources on this review process. I like to see companies get real value for these resources -- both in terms of having an accurate “file” should you need one, and because the review process can and should be a teaching tool for employees. I do wonder whatever happened to my Target friend (and if you’re reading this, please let me know!). But I suspect his sentiment is not unique. I wish I could have helped him change it.

It’s not supposed to be a bad thing. And a “5” should really mean something exceptional -- not be given in every category to everyone. In mathematical terms, the entire population cannot be ranked in the top 20% (or the bottom20%). But, you have to teach people here -- supervisors and employees alike. And be careful about attaching specific consequences to certain rankings. For example, if a “1” or a “2” requires that the supervisor draft and complete a performance improvement plan for that employee, you may see a lot fewer “1s” or “2s.” Finally, how often do you use these reviews. Once a year? That’s the most common timing, but I think (likely) the least effective. It’s difficult to measure performance over the course of a year. What if the employee did really well for the first half, but became one of my Target friend’s employees for the second half? It’s also difficult for an evaluator to remember performance over the course of a year (and more on that next). So what do you do? Stop doing annual reviews? You wouldn’t be alone, but I don’t think that’s necessarily the answer. What about quarterly check-ins? (Or even more often, if you’d like.) Have the supervisor drop a brief email to his employees -- saying here’s something that went well (and thanks!) and here’s an opportunity for improvement. These check-ins can be used alone, or with annual reviews. In fact, while I suspect there may be some initial grumbling about another “to do” on the list, I would say that these check-ins would be helpful for the supervisor in doing the annual review. Regardless of your review timing, supervisors need help with reviews. Too often, I see a supervisor completing a review without anyone having spoken to her about how to do it. I think there is an assumption that everyone has been reviewed so no training is required on how to give a review. But being a reviewer is much different from getting one. First, you need to have some record of information for you to reference. The evaluator needs to look back over the whole of the review period, and the easiest way to do this is to keep some kind of running record for each employee. There is no one size fits all here; a reviewer can keep notes, email, etc. But, (i) the record needs to be factual and provide details as to good and not so good performance, and (ii) it needs to be written in way that will make sense when the supervisor is looking back over the year. Next, you need to be honest. You can’t be “too nice” and

Johanna Fabrizio Parker is a partner in Benesch's labor and employment group. Her practice involves representing and counseling management clients in a wide range of complex employment matters, including claims of discrimination, harassment, and retaliation brought under federal and state law, as well as wage and hour claims, and matters involving noncompetition agreements and trade secrets. She can be reached at jparker@beneschlaw.com.

FIA MAGAZINE | NOVEMBER 2019 31