Employment Counseling and Litigation

A Second Reason for Performance Evaluations

Performance evaluations provide feedback to employees and identify opportunities for improvement. However, the importance of those reviews does not end at a termination. If the employment relationship has soured, performance reviews may serve an additional, important purpose.

After a termination, it is not uncommon for an employee to claim that the termination was unlawful. This contention will carry substantially less weight when the employer can point to the employee’s documented poor performance evaluations in support of the termination. Evaluations often are effective in legitimatizing the employer’s stated reason for termination, especially if it shows a meaningful decline in performance over time.

Note that employees may also seek to use performance evaluations to bolster their position. Pretext may also be found, for instance, where there is heavy reliance on subjective criteria, where employers have taken notably different disciplinary measures against other employees who engaged in the same or similar conduct, or where an employer terminates an employee following good performance evaluations without a clear reason for doing so. Managers, therefore, must be candid and fair in each assessment.

To ensure performance reviews serve as a shield and not a sword, keep the following in mind:

  • Use detailed, objective criteria to measure performance. Subjective criticism can be seen as pretext.
  • Focus on behavior, not attitude.
  • Provide the employee an opportunity to comment. Many times an employee will acknowledge his or her errors at the time.
  • Allowing the employee to respond during the evaluation process also may reduce miscommunication about particular performance issues.
  • Provide achievable goals. Goals that are very difficult support a pretext claim.
  • Conduct performance reviews on a consistent schedule, unless there is a unique reason such as a current PIP (performance improvement plane) in place.
  • Be careful of placing an employee under a microscope. Evidence of a sudden or unusual efforts to document deficiencies could raise an inference of pretext.