Tips for Ensuring Performance Appraisals Hold Up in Court

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Tips for Ensuring Performance Appraisals Hold Up in Court
Genevieve Northup, Editor, Germany

One inherent risk in the use of performance evaluations is that they may become the basis for or evidence in workplace discrimination or wrongful termination lawsuits. Based on an analysis of court proceedings in such lawsuits, researchers developed indicators to make performance appraisals defendable.
According to them, companies should consider the following in developing and executing appraisals that can withstand legal proceedings:
  1. RESPONSIBILITIES AND CAPABILITIES: Use performance criteria that are based on responsibilities and tasks of the position, as well as the capabilities of the employee necessary to successfully complete such requirements (Kreitner, 2009, p. 276, 283).
  2. BEHAVIOR: The basis of your evaluation should be an individual's behavior rather than an individual’s characteristics. (Kreitner, 2009, p. 283). In doing so, managers remain focused on “how” well employees accomplish requirements (Kreitner, 2009, p. 283).
  3. TRAINING AND INSTRUCTIONS: Reviewers receive training and detailed written instructions to avoid personal bias, errors and ambiguity (Kreitner, 2009, p. 283).
  4. REGULARLY MEETINGS: Reviewers meet with employees to discuss the performance evaluation to facilitate corrective actions and professional development (Kreitner, 2009, p. 283).
Source: Kreitner, R. (2009) "Management" (11th ed.). Boston, MA: Houghton Mifflin Harcourt Publishing Company.

Tips for Successfully Implementing Performance Appraisal Techniques
apeksha mehrishi, Student (MBA), India
Thanks for these appropriate suggestions!
Conducting performance appraisals is one of the HRD skills needed to evaluate and better develop employee performance and skills. And these 2 things in turn assure progress and growth of the organization in the long run.
It is necessary for today's managers to learn ways and best practices to implement appraisal techniques successfully.

Positive Intent of Performance Appraisal
srinivas, Test Manager, India
Irrespective of the outcome of performance appraisals, if the intent of the appraiser and the one who gets appraised is positive then a fruitful conversation will take place which can lead to a win-win situation for both the employee and the organization.
I do admit such good intent to care for the employee's welfare and the presence of the skills to steer through the clutter in order to achieve the above shared objective is a rare combination in reality.

Results of Performance Evaluation
ANDRES RENDON, Director, Colombia
Just right now we are implementing the first appraisals performance into our company, after 52 years. If a company or reviewer is ignorant on how to conduct the entire process, it will be very hard to get achieve good results.
I don't think that a performance evaluation constitutes risk, because it can offer improvement plans for the process or for the employee and to have a career plan in the organization, in addition to defined training requirements. On the other hand, the performance evaluation is also an input for remuneration. And further down stream we may also find just causes in order to fire somebody, however that is the last link of the chain. Before we take such final decision we must analyze more deeply the various causes that can also explain the low performance.

Legal Performance Appraisal Tips
Jaap de Jonge, Editor, Netherlands
Let's keep this discussion focused primarily on legal tips to avoid problems in lawsuits to be used when you're conducting a performance appraisal. Here's a practical one:
5. WRITTEN REPORTS: Write down and agree on the expectations, targets, results, proceedings, agreements, actions, etc. from both the annual performance appraisal and the intermediate meetings. Verbal agreements have little legal value if they can't be proven in court.

Local Laws Performance Evaluations and Appraisals
Ed Neri, HR Consultant, Philippines
6. LOCAL LABOUR LAWS: To avoid lawsuits or risk of court cases, you also need to custom fit your PE/PA to the labor laws or rules in the country it is used. Such laws obviously vary from one country to the next. It is incumbent on designers of a PE/PA to have a a good understanding of the labor laws of the land.

Legal Performance Evaluation Tips
ANDRES RENDON, Director, Colombia
I agree with you Mr. Jaap, it's key to "keep record" throughout the process. The recommendation is to store the results of several years (in my country) so that, in case we will proceed with a termination, we are well prepared. On the another hand, we should give guidelines to each employee as the organization develops this kind of process.

Developing and Executing Performance Appraisals that Can Withstand Legal Proceedings
Bernie Althofer, Consultant, Australia
Workplace bullying complaints and allegations can and are often made about performance management and appraisals processes. In some cases, individuals perceive they are being subjected to unreasonable management actions and in my experience, this is caused when all parties involved have not received relevant training or fail to follow the actual documented policies and procedures. Ultimately, some individuals raise performance management and appraisal processes in litigation. Both managers and workers struggle with the communication aspect of performance management and appraisal processes.
It seems that if organisations want to reduce any risk exposures that may arise through the implementation and application of performance management and appraisal, it is important to conduct training, not only on the process, but also on how to hold conversations and discussions about the various aspects of goal setting, objectives, behaviours, standards and how they will be assessed.

Performance to the Organisation
Onyango Lucius, Events Marketer, Uganda
Its good to introduce these things to the employees, but what matters most is that the managers implementing this process are well-versed with the performance appraisal system. If they are well educated then they can help in increasing the performance of the employees in the organisation, avoiding legal pitfalls.


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