The dos and don’ts of performance evaluations
By Howard Levitt
Today, I will answer some questions often asked by Human Resource managers, and by many employees too, on the subject of performance evaluations.
Can you force an employee to sign a letter of warning or negative evaluation?
Employers have a legitimate right to have evidence that their employees saw and reviewed their evaluations. Therefore, it can mandate that they sign an acknowledgement that they have read it. They cannot go further than that, for example, by having them assent to its contents. Needless to say, refusing to sign an acknowledgement of a warning is hardly a firing offence but may be cause for a letter of reprimand.
The risk in all of this is that, by forcing an employee to acknowledge receipt of a letter of evaluation, might motivate them to delineate precisely in writing what their areas of disagreement are.
Should an employee respond to a negative evaluation?
Almost invariably so.
Leaving a negative evaluation on the record both provides fuel for a just cause case for ultimate discharge and provides the employer with the apprehension that its criticism will go unchallenged if the employee is ultimately fired. Responding in writing takes that weapon out of the employer’s hands. Challenging the evaluation might also convey the message that that employee will be litigious, cause will not be established in either and the employee should not be fired at all or, if they are, offered appropriate severance.
If the employee is going to respond, they should not only delineate the evaluations and inaccuracies but spell out the countervailing issues, such as their history of positive performance, a lack of previous reprimand, the lack of support or tools from their employer which lead to the difficulties.
Is building up a case for termination by an employer worthwhile?
Many human resources managers have simply despaired of ever successfully building a case for cause. It is one thing to terminate an employee for the “hard” causes such as fraud, theft, or conflict of interest but when it comes to anything less, they believe that “the game is not worth the candle.”
They are wrong. Many cases can be won for disobedience, insubordination, gross incompetence, etc. after repeated warnings. It makes little sense to pay out substantial severance or, worse, retain an unsatisfactory employee. Providing warnings may result in a successful case for cause, but, even more often, it results in an employees performance improving or the employee resigning, which resolves the problem without any cost.
Can an employee sue for a negative evaluation?
No. Evaluations, just like job references, have been held by the court to be privileged since employers should be motivated to be frank and honest. Therefore, even if the employer gets it wrong and the employees career track is damaged, or wage withheld, there is no legal recourse. It is otherwise if the employee can prove that the evaluation was provided in bad faith without any honest belief in its truth, maliciously, solely to damage the employee.