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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?
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.
Powell, Trachtman, Logan, Carrle & Lombardo, P.C. is a full service law firm with offices in suburban Philadelphia, PA, Harrisburg, PA and Cherry Hill, NJ. Powell Trachtman represents a variety of commercial enterprises, entrepreneurs and business executives in respect to their litigation, litigation avoidance planning, business formation, business transactions, estate and tax planning, and other needs. We are also approved defense counsel for numerous insurance carriers in matters pertaining to professional malpractice, products liability, employment practices, directors and officers liability, and many other fields. For more information, contact us at info@powelltrachtman.com and visit our website at www.powelltrachtman.com.
