EMPLOYMENT LAW FOR HUMAN RESOURCE PRACTICE, 5E David Walsh © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Performance Appraisals, Training and Development Chapter 16 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Chapter Outline Performance Appraisals ◦ Performance Criteria & Standards ◦ Performance Appraisal Process ◦ Feedback on Performance Training and Development ◦ Training Contracts ◦ When is Training Legally Required ◦ Selection of Trainees © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Performance Appraisals (1 of 4) 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 Employers cannot appraise only men and not women, as such action would be discriminatory © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Performance Appraisals (2 of 4) Negative performance appraisals do not constitute discrimination ◦ However, if a biased negative appraisal becomes the basis for the denial of an employment opportunity, disparate treatment discrimination can be alleged ◦ Unwarranted negative performance appraisals could constitute “materially adverse actions” in cases of retaliation if they are used to punish employees for exercising their rights © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Performance Appraisals (3 of 4) Performance appraisals affect many employment decisions, including ◦ promotion, ◦ training and development, ◦ raises, ◦ and more © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Performance Appraisals (4 of 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 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Performance Appraisals – Performance Criteria… (1 of 3) Common performance criteria include ◦ work quality and quantity; ◦ attendance and punctuality; ◦ judgment; ◦ ability to work with others in a team; ◦ leadership; ◦ and so on © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Performance Appraisals – Performance Criteria… (2 of 3) Employers are free to establish criteria and standards of performance, 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 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Performance Appraisals – Performance Criteria… (3 of 3) 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 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Performance Appraisals – Performance Appraisal Process (1 of 4) Lack of Consistency in Evaluations: 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 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Performance Appraisals – Performance Appraisal Process (2 of 4) 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 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Performance Appraisals – Performance Appraisal Process (3 of 4) 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 Courts may view appraisals with both positive & negative comments as an indictor of a lack of bias © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Performance Appraisals – Performance Appraisal Process (4 of 4) 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 is waning Not surprisingly, these systems have become the object of legal challenges © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Performance Appraisals – Feedback on Performance (1 of x) Employers should: ◦ communicate performance appraisals to employees, ◦ provide an opportunity for discussion, and ◦ 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 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Performance Appraisals – Feedback on Performance (1 of x) Performance appraisal sometimes leads to identification of deficiencies and placement of employees on performance improvement plans (PIPs) Under a performance improvement plan, an employee is given outcomes that must be attained over some period of time (usually short) with negative consequences if not attained ◦ A warning to “shape up or ship out” © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Training & Development – When is Training … Required? (1 of 3) Training and development programs can make employees more productive and help them advance in their careers There are circumstances under which training is legally required or highly advisable Significant legal questions can arise regarding who receives training and who pays for it © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Training & Development – When is Training … Required? (2 of 3) 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 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Training & Development – When is Training … Required? (3 of 3) OSH’s hazard communication standard is based on the principle of the employee’s right to know about the dangerous chemicals they encounter on the job so that they can take steps to protect themselves Chemical manufacturers, importers must provide a material safety data sheet for each hazardous chemical © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Training & Development – When is Training … Required? (1 of 3) Other Circumstances… Firms that contract with the federal government must comply with the Drug Free Workplace Act (DFWA), and  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 3 rd parties may be injured, good training is required to avoid claims of negligent training © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Training & Development – Selection of Trainees Many training & development opportunities are offered on a limited basis and present questions of selection The successful completion of training is often linked to promotions and raises Much training received is on-the-job training from coworkers Another valuable form of training are apprenticeship programs, combining classroom instruction with work under the guidance of an experienced coworker © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

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 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? © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Next: Chapter 17– Privacy on the Job: Information, Monitoring and Investigations ◦ Does an employer have the right to read employees’ s? ◦ Do employees have constitutional rights granting them privacy? The answers to these questions and more are next. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.