Objective performance evaluations and progressive discipline help minimize exposure

The soaring number of charges filed with the Equal Employment Opportunity Commission (EEOC) and employment-related litigation claims initiated over the past ten years has made many employers leery when disciplining or terminating employees.  To mitigate this concern and any potential exposure when disciplining or terminating an employee, especially one who falls within a recognized protected class, there are certain measures that an employer can take.  While no policies are foolproof, an employer can enhance its position, and its ability to defend against discrimination, harassment and retaliation claims, should the need arise.  Generally, the basic tasks of performing regular employee evaluations, and maintaining and keeping good personnel records can be an employer’s best defense.

Performance evaluations
Employers should conduct candid and honest performance evaluations of their employees on a regular, periodic basis.  By conducting such evaluations, employers can alert employees to specific performance issues, including those that may require discipline, and provide employees with guidance, goals and a roadmap for improvement in a constructive manner. In addition, regular evaluations enable an employer to record individual employee performances, which can also be used to support any future disciplinary action.

In order for the evaluation process to be a productive and meaningful exercise, performance evaluations must be conducted with objectivity, honesty and candor.  As a number of human resources officers can attest, there are times when written employee evaluations or appraisals do not accurately portray an employee’s actual performance.  Though it may be difficult for a supervisor or manager to provide negative feedback for his or her subordinates, one can only imagine the difficulty that an employer will encounter if it ever needs to justify the termination of an employee who consistently received average to above-average performance reviews. When conducted on a regular basis, objective and honest evaluations not only give employees constructive feedback in order to enhance productivity and performance, but also provide employers with support in making employment-related decisions.

Once a format and schedule to complete performance evaluations is established, it is recommended that employers make the process as detailed as possible.  For instance, instead of relying on a numerical rating system for certain job functions, it is recommended that constructive feedback and detailed commentary be provided as part of the evaluation process.  With such detail, an employer can point to specific facets of the evaluation at a later date in support of an adverse employment action, rather than try to explain the rationale behind certain numerical ratings.  Before implementing a performance evaluation process, an employer should consider the following recommendations:

  1. Make sure the proper supervisor is performing the evaluation. The reviewing supervisor, or supervisors as the case may be, should have specific knowledge of the employee’s performance for specific tasks, assignments and projects.
  2. Provide feedback with specific examples of positive performance and contributions, as well as negative performance or disciplinary issues that require improvement.
  3. For items or areas that require improvement, adequately state and set forth the expectations for performance and specific goals.
  4. Provide specific timeframes for performance expectations and goals to be achieved for the areas or items requiring improvement.

Progressive disciplinary policies
In addition to implementing a process to conduct performance evaluations on a regular basis, it is also recommended that employers utilize a progressive disciplinary policy that properly documents all violations of the  established policies and procedures in accordance with that policy. Progressive discipline is a process of correcting job-related behavior that does not meet the employer’s expectations and performance standards.  It features formal efforts to provide feedback to an employee so he or she can address the specific issue and remedy the unsatisfactory performance or conduct.  The goal of progressive discipline is to assist an employee to become more efficient and productive, while also enabling the employer to fairly and equitably address performance and disciplinary issues.  With the proper documentation, an effective progressive disciplinary process enables an employer to discharge an employee who was ineffective, and unable or unwilling to improve.

Typically, a progressive disciplinary process includes the following steps: 1) counseling or verbal warning; 2) written warning; 3) suspension; and 4) discharge.  As mentioned previously, the progressive disciplinary process provides a chain of increasing penalties for policy infractions, beginning at the counseling or verbal warning stage through termination.  An employer’s progressive disciplinary policy should be included in the employee handbook or, at a minimum, communicated with employees in the same manner as the employer’s other policies and procedures.  The policy should also contain clear language that certain conduct, such as theft, substance abuse, intoxication, fighting at work or engaging in other violent acts, are not subject to progressive discipline, but constitute grounds for immediate termination.  This caveat within the policy will provide some leeway for the employer to immediately terminate an employee for engaging in such illegal conduct.

Finally, any disciplinary action taken against an employee should be thoroughly documented, communicated to the employee, and maintained in his or her personnel file.  It is critical that a clear trail exist identifying the reasons behind any and all disciplinary actions that have been taken.  As a mitigating measure, an employer should not take any disciplinary action until documents are developed to identify the following facts: 1) the employer has a standard or policy governing the behavior in question; 2) the employee knew of the standard or policy and the consequences of violating it; 3) the employer applied the standard uniformly, rather than selectively; and 4) the employee violated or failed to meet the performance standard.  Even with such documentation, an employer will not be able to stop a disgruntled employee, or former employee, from filing suit on ground of discrimination or retaliation.  However, such documentation and detail will go a long way in explaining why the adverse employment action was taken, especially if the employee’s performance evaluations and prior policy violations support that the action was taken for legitimate reasons.

In closing, there is no sure fire way for an employer to shield itself from being subjected to a complaint being filed by a former employee who was terminated.  However, by conducting objective and honest performance evaluations, establishing and following a progressive disciplinary process, and properly documenting and maintaining personnel records, an employer is able to mitigate its exposure against such claims.

Douglas C. Hart
Douglas C. Hart is a Member of Burns White, practicing in the firm’s Litigation Group. An experienced trial attorney, Doug has a broad reaching litigation practice, handling commercial litigation, employment, real estate, construction and health care-related matters.

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