Performance Reviews Can Cut Both Ways in Litigation
In an “Update Post,” Daniel Schwartz in the Connecticut Employment Law Blog comments, among a number of items, on an article suggesting that performance reviews should be eliminated and a more recent one suggesting that performance reviews should not be eliminated but “owned” by managers.
I have a long history with performance reviews, starting, of course, as a corporate employee and manager being reviewed; then, as human resources professional and as manager doing reviews; and now, as an attorney using them to help resolve emploument disputes.
The last experience has been the most consistently interesting. In litigation, performance reviews can cut either way. They can be a rich source of discovery for employee plaintiffs - - practically demonstrating inconsistencies and discrimination. On the other hand, reviews can embody an effective defense for management showing business justification for whatever adverse employment action may be at issue.
For managers, “ownership” may be the right metaphor. Eliminating the reviews may mean eliminating the hard evidence that justifies management’s actions with regard to employment issues (both positive and negative).
On the other hand, if the reviews do exist, managers are going to “own” them one way or the other. Either the reviews establish clarity of communications on performance-related issues. Or, the reviews become a permanent record of management’s lack of clarity on those same issues.
And, it’s not just a matter of taking a defensive posture toward litigation. Long before that it’s a matter of establishing credibility with employees and communicating clearly on issues of performance.
Excellent post. Somehow, it's hard to convince business managers that reviews are important for possible litigation later on. It always seems so remote and telling them its also a good business practice doesn't seem to get very far.