Chapter 16 Performance Appraisals, Training and Development

Performance Appraisals 1 Regardless of the efficacy of performance appraisals, they hold great legal significance. The central legal concern is that they not be discriminatory. In general, employers have no duty to conduct performance appraisals. If employers choose to do so, they cannot appraise only men and not women, as such action would be discriminatory.

Performance Appraisals 2 Negative performance appraisals do not constitute discrimination. However, if a biased negative appraisal becomes the basis for the denial of an employment opportunity, then disparate treatment discrimination can be alleged. Also, unwarranted negative performance appraisals could constitute “materially adverse actions” in cases of retaliation if they are used to punish employees for exercising their rights.

Performance Appraisals 3 Performance appraisals affect many employment decisions, including promotion, training and development, raises, and more

Performance Appraisals 4 Courts will not review performance appraisals to determine whether the appraisal was correct. Only to determine if there is discriminatory intent or other illegal motives Recommended: Employers should conduct performance appraisals regularly and maintain credible, written documentation of performance.

Performance Criteria & Standards 1 Common performance criteria include work quality and quantity; attendance and punctuality; judgment; ability to work with others in a team; leadership; and so on.

Performance Criteria & Standards 2 Employers are free to establish criteria and performance standards, but must: take into account the needs of disabled employees; be consistently applied; be as objective as possible; be job related and consistent with business necessity.

Performance Criteria & Standards 2 Employers can and should hold disabled employees to the same standards of performance as nondisabled employees who do the same jobs. Receipt of a reasonable accommodation should not be held in any way against a disabled employee. If a disabled employee is unable to perform a marginal function of a job, that function should be removed from the job and not be reflected in performance ratings.

Just the Facts An employee was diagnosed with bipolar disorder. Following a period of leave after an “emotional breakdown” at work, she informed her supervisor and co-workers of her condition and asked for their understanding as she was seeing a therapist and dealing with medication issues. However, her symptoms grew more severe. She became increasingly irritable, and unable to concentrate. During this time, her current and former supervisors met to discuss her “attitude” and what they saw as her poor performance. The supervisors decided to place her on a performance improvement plan. She was ordered to come to a meeting about the plan, but not told the purpose. At the meeting, she became very upset, swore, and stormed out. The next day when she came to work she began to have suicidal thoughts. The employer sent her to the hospital and provisionally approved her request for FMLA leave. However, just as her leave was to begin, the employer also commenced an investigation. After hearing from some coworkers who expressed concerns, she was terminated. The reason given was her outburst at the meeting. Did this employer violate the ADA by terminating a disabled employee under these circumstances? Gambini v. Total Renal Care, 486 F.3d 1087 (9th Cir. 2007) (as amended).

Performance Appraisal Process 1 A performance appraisal which is inconsistent with prior appraisals raises legal issues. After an employee has filed a charge, it appears to be retaliation. Shortly before layoffs or a termination, it appears to be pretext to justify the decision to layoff or terminate. Performance appraisals must not be manipulated and made more negative than actual performance warrants.

Who Conducts Performance Appraisals? Employers should provide training or written instructions to those who conduct performance appraisals. If coworkers or others also participate in performance appraisals, they also require instruction in good appraisal techniques and legal issues.

Contents of Appraisals Appraisers should not shy away from criticism, but their tone should be measured and professional. Extreme language suggests hostility, and may become the basis for a cause of action for discrimination or defamation.

Raytheon Tech Services v Hyland Facts: A management consulting firm was hired to evaluate the President of the firm, and interviewed several employees. One employee, Hyland, gave both positive and negative feedback, which they assured her would be kept confidential. The President learned of her comments, gave her a negative performance appraisal, and fired her. The appraisal contained several statements which Hyland contended were defamatory, and Raytheon contended were statements of opinion, protected by qualified privilege. A jury found for Hyland; Raytheon appealed. Issue: Whether the statements were sufficiently factual to serve as the basis for defamation. Held: Three of five statements were opinion, not fact, and could not be the basis of a judgment for defamation. If factual statements were maliciously false, the qualified privilege was lost. But since the jury did not advise which statements formed the basis of their verdict, judgment for plaintiff vacated, and case remanded for a new trial.

Forced Distribution Method Forced distribution methods require that predetermined percentages of employees be placed into particular performance categories. Forced distribution rankings are often accompanied by rigid policies calling for termination or other adverse employment consequences for those employees ranked in the lowest category. Forced distribution methods of performance appraisal have seen wide use, although their popularity might be waning. Not surprisingly, these systems have become the object of legal challenges.

Feedback on Performance Employers should: communicate performance appraisals to employees, provide an opportunity for discussion, and allow employees to respond to and appeal them. Employers should not attempt to avoid unpleasant confrontations by failing to provide employees with feedback about their performance and opportunities to improve performance that are routinely provided to other employees.

When is Training Legally Required? In general, employers have no duty to train their employees. One important exception is training for safety and health reasons. Over 100 OSH standards call for training employees exposed to certain hazards; failure to train would constitute a violation of the OSH Act. Employees have a right to know about hazards on the job.

Other Circumstances for Training Firms that contract with the federal government must comply with the Drug Free Workplace Act (DFWA). Compliance with the Act requires that employers: inform employees about the drug-free policy and dangers associated with drug abuse; advise regarding available options for counseling, rehabilitation, and employee assistance programs; and advise potential penalties for drug violations. Where 3rd parties may be injured, good training is required to avoid claims of negligent training.

What Would You Do? You are the HR manager of a small consulting firm. One of your department managers has been having trouble with a consultant (Janus) and has just completed his first performance appraisal. She has submitted it to you for your review before it becomes part of the record. It contains the following statements: 1) “Janus is a bad singer stuck in a bad one-note song. All of his consulting advice recommends the same action.” 2) “Rather than give honest advice, Janus says what people want to hear. He is spineless.” 3) “Janus is a twerpy weasel, and should be discharged.” What would you do?