ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Sunday, November 3, 1996 TAG: 9611040097
SECTION: BUSINESS PAGE: 4 EDITION: METRO
COLUMN: Working It Out
SOURCE: CAMILLE WRIGHT MILLER
Q: I'm a new supervisor, expected to conduct performance evaluations and document performance on an ongoing basis. That's all well and good, except no one's been able to tell me exactly what I'm supposed to document. I don't have unlimited time to write down everything. On the other hand, I want to do what I'm supposed to do. It also concerns me that whatever I write becomes part of a permanent record.
A: Most documentation and performance evaluations will be positive - noting what's been done right. But, there are occasions when poor performance must be documented. If done correctly, documenting can be corrective and gain improved performance. However, if performance doesn't improve and termination results, thorough documentation may be what protects you in a lawsuit brought by the former employee.
Tammy Moss, an attorney with The Center for Employment Law, which specializes in labor and employment issues for management, says that ``one of the world's toughest jobs is to manage people, since in today's legal environment, employers are required to do more than just have a legitimate reason for their management decisions.''
Moss says managers, as a result, ``must also be ready to defend their decisions before federal and state courts and agencies.'' Moss says that ``first and foremost, avoid bad facts.''
Employers can avoid the bad facts scenarios by ``evenhanded and consistent use of employee performance evaluations, documentation of specific performance problems and corrective counseling.'' The goal of each is twofold - ``to establish a documented, legitimate business reason for employment decisions and to provide employees with a fair and honest measurement of their performance and the employer's expectations.''
Bad facts suggest to a jury that supervisors didn't do their jobs properly - so the terminated employee must be right. Moss offers several examples of bad facts.
For example, ``The longer an employee's service record, the more suspect a sudden termination will seem and the more sympathetic a jury will be to a discharged employee.''
A history of satisfactory performance can also produce a bad fact. Moss notes that ``when long service is combined with a documented record of satisfactory performance and regular merit raises and/or promotions, the more difficult it becomes to justify an employee's termination for poor job performance."
Another bad fact is ``lack of documentation.'' Moss says ``the absence of documentation of the alleged reasons for termination is problematic, especially if the employer conducts regular written performance evaluations.''
Sudden changes in performance evaluations, such as ``a sudden and unexplained deterioration in an employee's performance evaluation rating which occurs just prior to discharge may suggest that the employer was attempting to fabricate a pretextual or unjustified basis for termination.''
``Departure from personnel policies and disparate treatment'' also create bad facts. In the first case, Moss says ``an employer's failure to follow its own personnel policies will likely undermine the employer's justification for termination.'' In the disparate treatment case, Moss says that ``even where performance is inadequate, if the employer has not treated similarly situated employees consistently, a jury may find that the termination was unlawful.''
In terms of what and when to document, Moss says that the decision ``in regard to job performance problems is a fact-specific inquiry. If significant performance problems are recognized, they should be brought to the employee's attention and discussed so the problem can be corrected.
``The fact the employee was made aware of performance deficiencies should be documented in some form, whether a handwritten note to the personnel file stating that the counseling session occurred on a particular date, or a formal summary of the discussion, signed by both the manager and the employee.''
Personnel files, Moss says, ``are often the evidentiary crux of an employment case involving an employee's termination for poor job performance. Files should be reviewed and updated on a regular basis to ensure they contain accurate information.''
Additionally, she says, ``Managers must be made aware that written documents they create and place in file may be subject to legal scrutiny down the road. Performance evaluations and any other any disciplinary documentation should be carefully prepared and reviewed prior to placing it in an employee's personnel file.''
Supervising requires that you document as you go. While no supervisor hopes to face a lawsuit, the possibility always exists. Documentation is a strong weapon in protecting your career.
LENGTH: Medium: 85 linesby CNB