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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.
Counsel Consulting Group LLC helps companies throughout the United States avoid employment and HR-related claims and liabilities. CCG assesses existing policies, procedures and problem areas; it provides customized liability-avoidance training to managers and executives; and it designs and implements business techniques that reduce employment liability risks on a long term basis. CCG also offers specialized workshops for managers and HR executives, customized consulting in focused employment-related areas, and CD-ROM and web-based training alternatives. For more information, contact us at info@powelltrachtman.com and visit our website at www.counselconsulting.com.
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