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‘TIS
THE SEASON ... FOR YEAR END EMPLOYEE EVALUATIONS
As They Say on Law and Order, Everything You Say Can and
Will Be Used Against You
Many companies require managers to complete written evaluations
for the employees they supervise. There are lots of good
reasons for such a procedure, ranging from the role these
evaluations can play in constructive goal setting, to
the early identification and remediation of performance
problems.
At least that’s the theory. The reality is that
many managers simply refuse to treat the evaluation process
seriously. If they fill out the forms at all, they typically
provide a uniformly “vanilla” assessment that
takes little of their time, and steps on no one’s
toes.
Part of the reason for this is the universal hatred of
what managers perceive to be meaningless “paperwork.” But
an even greater part of the explanation is the natural
human impulse to avoid confrontations and unpleasantness – it’s
no fun having to tell an employee, particularly one you
may personally like, that he or she is performing poorly,
or violating policies, or engaging in conduct that could
lead to liability. Managers, like the rest of us, want
to be liked, and that often results in their putting off,
sometimes forever, occasions when it is necessary to be
the bearer of bad news.
How Employee Evaluation Forms Prevent Employment Lawsuits
The failure to properly evaluate employees, however, is
much more than a bureaucratic annoyance. For companies
interested in minimizing employment practices lawsuits,
it has great significance.
Here’s how the real world scenarios typically play
out.
Suppose your company hires an employee, Smith, as of January
1, 2002. Your company requires employee evaluations every
six months. Smith is a borderline employee – while
not committing horrific errors, he is unproductive, uncooperative
and does the bare minimum. However, Smith’s manager,
Jones, hates confrontation, and submits evaluation forms
for Smith on July 1, 2002, December 31, 2002 and July 1,
2003. They are all wishy-washy, “meeting expectations” evaluations,
with no details.
By the end of 2003, Jones realizes that, in order to avoid
his own adverse reviews, he will have to terminate and
replace Smith. He does so, and a few months later, Smith
files suit, claiming that Jones’ decision was based
on the fact that Smith had a bad back and would require
an accommodation under the ADA, and that Jones simply wanted
to replace Smith with a younger, healthier employee.
At the trial, Jones testifies about the performance deficiencies
that led to Jones’ decision to fire Smith. On cross-examination,
however, Smith’s attorney confronts Jones with
blow ups of Jones’ "vanilla" evaluations
of Smith. The obvious and easily made point is that if
Smith were really such a bad employee, Jones’ evaluations
would have reflected that assessment, and the fact that
the evaluations do not must mean that Jones is fabricating
the accusations, after the fact, in order to cover up
the real motive for firing Smith.
It’s a powerful argument that often results in a
substantial verdict.
Now picture the other side of the scenario: Jones’ evaluation
forms repeatedly note Smith’s deficiencies, and reflect
Smith’s failure to improve despite repeated warnings.
Given this kind of documentation, Smith’s attorney
will have a hard time proving that Jones acted on the basis
of some illicit motive. In all likelihood, Smith’s
attorney would be extremely reluctant to pursue the case – unless
Smith protested the evaluations at the time and can show
that they are somehow bogus, how will Smith’s attorney
prove that Jones acted on any basis other than Smith’s
poor work record?
How Do You Get Your Managers to Create
the Right Kinds of Evaluation Documents?
Given the obvious importance of employee evaluation forms,
how do you convince your company’s managers to go
along with the program?
In our experience, the usual approaches – publishing
policy manual provisions, sending memos reminding the managers
of the obligation – do not work over the long term.
Some companies discipline managers who fail to timely and
thoroughly complete evaluation forms, but that is not the
best motivational tactic, to be sure, and raises a host
of other issues.
Our recommendation: as part of their compliance training,
scare the bejeezus out of your managers by showing them,
not just telling them, what will happen to them at the
hands of opposing attorneys if they fail to take employee
evaluations seriously. Although “management by fear” leaves
a lot to be desired from a pure human relations perspective,
it can be an effective compliance training tool if not
overused. Fear and self-preservation are great motivators,
and they produce the kind of lasting effects an ideal compliance
training program should be geared to provide.
We do this during in-person training sessions by demonstrating,
usually with an audience “volunteer,” the sort
of cross-examination they can expect. In our e-learning
disks and web-based training, we demonstrate a typical
cross-examination, the effect of which is to create a “but
for the grace of God there go I” reaction in those
who participate in the program. It’s a very effective
approach.
Taking the employee Smith/manager Jones scenario as an
example, here’s how the cross-examination demonstration
unfolds:
Q: Mr. Jones, you take the job of managing the people
who work for you very seriously, don’t you?
A. Of course.
Q. And you would never knowingly lie or make misrepresentations
about an employee who works for you, would you?
A. Of course not.
Q. Mr. Jones, in your capacity as a manager, you are
required to fill out employee evaluation forms every
six months,
isn’t that so?
A. Yes.
Q. Now, Mr. Jones, I am showing you the three evaluation
forms, covering a year and a half, that you filled out
and signed in reference to Mr. Smith. Do you recognize
these forms?
A. Yes, they are the evaluations for Mr. Smith.
Q. Mr. Jones, let me direct your attention to the directions
at the top of each of these forms. Would you read what
it says to the jury?
A. It says: “You are to complete this form accurately
and completely. Be certain to set forth in detail each
performance or conduct deficiency that applies to the employee
being evaluated.”
Q. And when you complete the form, you have to sign it,
which verifies that you filled it out as required, right?
A. Correct.
Q. And you signed each of these forms, right?
A. Yes.
Q. Now you would not lie to your employer would you?
You’re
not a liar, are you?
A. No, I am not a liar.
Q. And you have already told us that you would never
lie or make a misrepresentation about an employee. You
stand
by that, don’t you?
A. Yes.
Q. So, because you are not a liar and you would certainly
not make a misrepresentation about an employee, we can
assume that what is on these employee evaluation forms
is the truth, right?
A. I guess that’s right.
Q. Now, Mr. Jones, you testified that you fired Mr. Smith
because, for over a year, he had not properly performed
his job. Does that remain your version of the facts?
A. Yes, that is why I fired him.
Q. Mr. Jones, please point out to the jury where, on any
of the evaluation forms, you wrote down that Mr. Smith
had not properly performed his job and was subject to termination.
A. I did not write that down.
Q. Let’s get specific. In response to the question
on page 1 of the evaluation which asks if Mr. Smith displays
the skills required for his job, tell the jury what you
said.
A. The form says Mr. Smith was meeting expectations.
Q. And, on page 2, where it asks if Mr. Smith uses his
best efforts to perform his job duties as directed, what
did you say?
A. It says he is meeting expectations.
Q. And on page 3, where the form asked if Mr. Smith displays
a helpful and cooperative attitude, what did you say?
A. Again, I said he was meeting expectations.
Q. In each instance, there is a space to write comments
or explanations. Read all the comments or explanations
in which you qualified your assessment of Mr. Smith in
any way.
A. There aren’t any.
Q. Well, would you agree that, these being employee evaluation
forms, if in fact Mr. Smith were not doing his job, this
would be the place to state that clearly?
A. Yes.
Q. Did you hire a replacement for Mr. Smith?
A. Yes.
Q. How old is the replacement?
A. He is 26.
Q. And you knew from his file that Mr. Smith was 52,
isn’t
that right?
A. Yes.
Q. And you also knew that Mr. Smith had some medical issues
that might cause him to lose some time, or might require
you to accommodate him as required by the ADA. Right?
A. He told me he had a bad back.
Q. But it is your testimony – under oath – that
these factors had nothing to do with the decision to fire
him but, instead, he was fired based on performance. Is
that right?
A. Correct.
Q. And at the same time, you admit that the evaluation
forms you accurately filled out and signed say nothing
about these supposed performance issues?
A. They speak for themselves.
Q. The truth is, if Mr. Smith were really a bad employee,
the evaluation forms would have said something about that.
Isn’t that right?
A. I didn’t want to hurt his feelings or his job
prospects.
Q. So you lied on the forms in order to protect Mr. Smith.
Is that what you are saying?
A. I did not tell the whole truth because I did not want
to hurt him.
Q. Did not want to hurt him? You didn’t care
so much about that when you fired him, did you?
A. He left me no choice.
Q. You had the choice to long ago tell him on the
evaluation form if he really was messing up on the job,
so he could
improve and avoid termination. That was a choice, wasn’t
it?
A. I suppose so.
Q. This explanation you have now given us – that
would mean you lied under oath just a few minutes ago,
when you said you would never fill out these forms in an
inaccurate way. Isn’t that right?
A. If you say so.
Q. So, now that we know you will lie when it’s convenient
for you to do so, let’s return to the matter at hand.
You know that the company could suffer substantial damages
if you fired Mr. Smith because of his age or his bad back,
don’t you?
A. Yes.
Q. And if the company suffers substantial damages
based on what you did, that would be pretty inconvenient
for
you, wouldn’t it?
A. I’m sure.
Q. And we have just established, haven’t we, that
you will lie to protect yourself – just like you
lied on the evaluation forms, just like you lied earlier
in your testimony?
A. Not so.
Q. And you’re lying right now, for that very reason,
aren’t you?
A. No, I am telling the truth.
Q. Mr. Jones, do you understand the penalties for perjury?
...
That sets the stage for a powerful summation to the jury:
Ladies and gentlemen of the jury, you have to decide
who is telling the truth. It’s that simple. Mr.
Smith claims that he was fired because he had a bad back
and
because Mr. Jones wanted to replace him with a younger
employee, all of which is blatantly against the law. Mr.
Jones says he fired Mr. Smith only because Mr. Smith was
a bad employee. Which story makes more sense? Who is telling
the truth?
It is undisputed that Mr. Jones filled out three employee
evaluations before he fired Mr. Smith. It is undisputed
that Mr. Jones never said one negative thing about Mr.
Smith in any of those evaluations, right up to the day
he fired Mr. Smith.
What is Mr. Jones’ explanation for that? Mr. Jones
tells us that he did not report Mr. Smith’s poor
performance on prior evaluation forms because he wanted
to protect Mr. Smith. Just how stupid does Mr. Jones think
you must be? Don’t you think that if Mr. Jones were
really concerned about Mr. Smith’s welfare, he would
have helped him improve, instead of just firing him out
of the blue so that Mr. Smith could no longer support his
family?
The fact is this: Mr. Jones is lying to protect himself.
He knows that if the real reason for his firing Mr. Smith
is brought to light, he and the company will be liable
to Mr. Smith. I showed you that Mr. Jones does not mind
lying under oath – he did it twice during his cross-examination,
when he gave conflicting testimony about filling out the
evaluation forms truthfully, and when he said he would
never make a misrepresentation about an employee. Lying
to protect himself is not a big deal to Mr. Jones, and
he is doing it now. He needs to protect himself, because
he knows he committed a horrible wrong when he fired Mr.
Smith.
Don’t let Mr. Jones, and those like him, get away
with this. Send them a message: in America, employees have
certain rights, and employers should not be allowed to
lie in the effort to decimate those rights. Show Mr. Jones
and everyone like him that juries aren’t stupid,
and that employers have to start telling the truth. Other
employers will read about what you do – you have
an opportunity to send a message that will either encourage
them to keep lying, or insist on the truth.
You Can’t Just Tell Them; You Must Show Them
There are other employee evaluation issues that are equally
dangerous, and those dangers can be pointed out in a similar
way. For instance, some managers fill out the evaluations
inconsistently, requiring one thing in one evaluation,
and switching gears in the next. A skillful lawyer can
turn that into evidence of a set up to get rid of an employee.
Sometimes, evaluations will reveal what appears to be unlawful
managerial bias – for instance, evaluations that
consistently make the same sorts of negative comments about
minority or women employees, but not white males, can easily
be portrayed as reflecting a pattern of discrimination.
But, to make the point one last time, merely explaining
the problem in a manual, or through a lecture with PowerPoint
slides, will not do it. Managers need to understand, really
understand, that once an employment lawsuit is filed, they
are the accused and, like the TV cops say to the TV criminals,
everything the managers say can and will be held against
them.
CCG’s management training is structured with this
in mind. Our new “CCG E-Learning Training Sampler” will
be available in March on cd-rom, and includes various examples
of state-of-the-art training techniques that can change
management behavior over the long term. If you are interested
in exploring how we can help your company avoid lawsuits
and liabilities through e-learning training methods, please
feel free to contact us and we will be pleased to forward
a free copy. If
you are interested in our in-person compliance training
programs, please
contact us and we will be pleased
to explain in more detail the services we provide.
This
month’s WHAT DO YOU
THINK? poses a practical,
nuts and bolts problem faced regularly by our clients.
You provide your employees with computers and an email
system. Are you permitted to look at the emails they send
and receive on your system?
For instance, employee A is non-productive, and you want
to see if he is spending substantial time sending personal
emails. You suspect employee B is looking for a new job
with a competitor, and you want to check her e-mails
before you allow her access to any more business plans
or trade secrets. Employee C claims she was harassed
by employee D, who denies it, and you want to see if
any of their e-mails can break the “my word against
your word” log jam.
Click
here to give us your point of view.. Next month
we will share your input (but we will never disclose
your name, e-mail address or other identifying data
without your permission).
ANALYSIS AND REVIEW:
WHAT DO YOU THINK? -- NOVEMBER 2003
Our November 2003 WHAT DO YOU THINK? dealt with an issue
just argued before the United States Supreme Court. It
involved a situation in which an employee, Hernandez, was
fired for failing a work place drug screening. Hernandez
successfully completed a rehab, and applied for reinstatement.
The employer refused, stressing that Hernandez had violated
a very important workplace rule. Hernandez, however, contended
that he had a disability as defined by the ADA – a
former addiction – and it was unlawful to prejudice
him on that basis.
Some of your comments:
“How can the ADA be used to prevent an employer
from protecting its property and other employees from known
criminals? Would a school be required to hire back an admitted
child pornographer?“
“In the Hernandez case, in the absence of no-rehire
policy or practice, the employer is discriminating. If
the employer has a strict policy of no-rehiring former
employees then they may have a defensible position.“
“I think it’s impossible to reach an equitable
decision in this case. On the one hand, Mr. Hernandez should
be congratulated for conquering his addiction and should
be able to start fresh, but the employer has a legitimate
business reason for rejecting an applicant that has already
proven himself undependable.”
“This is why good people can’t find good jobs
anymore – employers
are forced to hire drug addicts and thieves who bend
the law to their own advantage.”
“Hernandez exhibited professionalism and company loyalty
by removing himself from the situation before the Company
had to expend time and resources on his termination.
He got his act together and should be commended, not discriminated
against.”
“Did he give the required notice, leave in the middle
of a shift, just not return after the drug test? These
questions
all go to his character and the ability of the employer
to trust him again.”
“How can an employer operate if it is not allowed
to enforce legitimate business rules of professional conduct?”
“With regard to drug abuse, the ADA only protects
recovering/former addicts. The employer in this situation
is basing its decision
on the individual’s conduct while employed.
At that time, Mr. Hernandez was a current illegal
drug user and
as such had no protections under the law.”
This is one of those situations which plainly depends
on the predilections of the Justices who make up the Supreme
Court at any given time. The wording of the ADA statute
itself will permit a wide range of decisions, and that
allows individual Justices to give life to their individual
biases. Until then, there is no “right” or “wrong” answer
under the law: the law is what the Supreme Court says it
is, and it has not yet spoken. When it does, we will let
you know.
In the meantime, situations involving disabilities, terminations
and reinstatements remain minefields of potential litigation – tread
lightly, and let
us know if we can help.
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