Conduct a Performance Appraisal with Minimal Risk

Every employer, every manager, understands their employees don’t necessarily like performance reviews. What the team isn’t always aware of, however, is this: managers don’t like them either.

Shocking, right? Well, when you have to give an employee some criticism that hits home, you have to do so with tact, and that can be hard to do. At least through the eyes of your employees. Issues stemming from a poor performance appraisal often come from poor delivery. If you don’t want to risk your employee taking the performance appraisal to HR – or another step further to litigation – follow these tips.

A Negative Before the Positive?

The last round of performance reviews, your employee’s performance was exceptional. You made it a clear point to tell them how their outstanding performance aided the success of the organization. The marketing mistake they made beforehand seemed minuscule, so it seemed irrelevant to mention. This round of performance reviews, you noticed their performance didn’t quite par up to the last one… and you remember that marketing mistake from last year.

It’s not a good idea to bring poor performance events that pre-date a positive review.

This is indicative of poor management, and can look like retaliation or bias if your employee takes this to your HR department. If 3M is at risk for performance related litigation, you are as well. 3M faced a lawsuit in 2011 primarily because of their faulty forced ranking system. Despite actual performance, the subjectivity of meeting quotas allowed a (whether intentional or not) reliance on bias during employee performance reviews. This resulted in legal proceedings revolving around the disproportionate number of older workers classified in the 10% of “below average” employees.

Review Personnel Files

Preparation before each individual performance appraisal is key for any manager. However, it is difficult when these personnel files aren’t updated on a regular basis or have faulty / bias information. The Critical HR Record keeping Special Report from notes:

“It is important to include both positive and negative information in the personnel file so that it is a balanced file – this helps employers fend off charges that the employer only keeps negative information in the personnel file in case of litigation.”

The report explains many of the key points that need to be included in personnel files. While these points do help ward off potential legal battles, they are obligatory in compiling necessary performance appraisal information in order to maintain a well-rounded and complete view of the employee’s work between performance reviews. These points include:Commendations and awards

  • Commendations and awards
  • Written warnings and documentation of verbal warnings
  • Past performance appraisals
  • Absence records (if your organization keeps attendance)
  • Paperwork of employee acknowledgement of company policies
  • Training records (especially those required by law)

Lackadaisical, haphazard and inconsistent documentation of employee performance won’t result in litigation alone; but without this documentation, if an employee files a lawsuit, your organization will find it difficult to protect itself and managers against EEOC and OFCCP audits.

Above All Else, Back it Up

A performance appraisal is based on factual performance, right? The information, criticism and praises you give your employees during their performance reviews have to be substantiated on facts. Employers noted some of the common issues among evaluators;

37.4% said the evaluators don’t tell employees specific details as to why they were graded well or rated poorly. Perhaps more worrisome is that 12.3% of employers say that their evaluators have a tendency to undervalue overall performance because of one negative act. If an employee feels their performance review is unfair, they have a right to take the performance appraisal to HR for further review. By not backing up the criticisms (and praises) in performance reviews, supervisors conducting the performance review set themselves up for possible litigation.

While it can be an uncomfortable aspect of performance management, it’s important to take as much care and attention with performance appraisals as any other part of your job. Understanding how to evaluate your team’s performance can ease the stress of possible litigation. By staying current with employee performance – not evaluating prior to their last performance appraisal – and backing up information with solid factual points, you are less likely to face an employee-instigated lawsuit. Maintain proper documentation of your employee’s performance so your team won’t take the performance appraisal they weren’t so happy about to HR for further investigation.

The New Workplace Social Contract of Go, Go, Go

I remember the fear of actually finishing something. Then the fear of executing that something. And then the fear of never quite being good enough. And then the fear of being crushed under the weight of overcritical judgments again and again.

And then again, I remember the pleasure of being pushed to perform, even in the face of failure, to reach for the sky.

Get to 80 percent and go, go, go.

No words have ever been sweeter for employees today. I heard them recently. Have you?

I certainly hope so, because if you work in a risk-adverse, top-down-tyranny culture where entrepreneurial employees who are adaptive and innovative are not welcome – well, you are in a world of personal pain. And if you’re one of the high performers, even in the face of tyranny, then you’re more than likely to go, go, go.


Yes, we keep talking incessantly about how bad the relationship is between employees and employers. Yes, we get it. It’s bad.

But even with the limited solutions that are offered today in the world of work, none has been actionable enough; we just keep playing misery shuffleboard.

Unless your company moves beyond its misery and doesn’t worry so much about getting the go-to-market branding strategy 100 percent perfect to market and sell your stuff. (Your company does market and sell stuff, even you’re a non-profit, you know.)

Combine iterating over and over until you almost never get it right with working for a leadership team that punishes you either way you go, go, go, and again, you’re gone.

Employers aren’t going to succeed long term in such an increasingly competitive environment. Instead, they must feverishly work on keeping their employees engaged, something that has become all the more difficult in recent years (and most of whom fail).

And that means encouraging continuous adaption, innovation and good old-fashioned failure. Because within a highly communicative and collaborative culture, regardless of how dispersed your workforce is, getting to 80 percent of go-time is where it’s at.

That’s why the continuous impetus to improve engagement is clear and is the new social contract between employees and employers; the fact that we need to move fast, fail together, and ultimately excel tangibly and intangibly. This is how companies will drive long-term business outcomes and retain high performers.

The 2014 Deloitte Global Human Capital Trends research report found that the vast majority (78 percent) of business leaders rate retention as either urgent or important. Moreover, research from many sources continues to show that employee engagement is still a major issue for companies around the globe, with only 13 percent of employees worldwide considered to be actively engaged.

This is likely due to the traditional and transactional “contract” between employees and employers; employees are expected to do their job, and they get compensated for it – no questions asked or else. However, this approach does little to actually engage employees who increasingly want to feel that they are valued and have a bright future with the company – a paycheck isn’t enough.

If individuals don’t receive the experience they increasingly want – where they feel the employer is committed to their ongoing development and helping set the stage for a long and successful tenure of reciprocal growth, they will seek to go elsewhere. In order to truly engage and encourage continuous collaborative execution without fear of failure to succeed, organizations must evolve their talent performance management practices to drive talent engagement strategies and determine how they can provide a more rewarding experience.

Exactly what Marla Gottschalk, Ph.D., Industrial & Organizational Psychologist and Director of Thought Leadership at Kilberry Leadership Advisors, and Chip Joyce, CEO and Co-founder of Allied Talent, told us on the TalentCulture #TChat Show.

The fact that building a new bridge between employees and their employers starts when we take the time to understand each others’ needs. Helping each other manage priorities that ultimately propel the business in a positive direction (on most analytical accounts) will make all difference. Part of what makes an organization healthy is keeping organizational goals aligned with employees’ goals.

But it’s not just about work; it’s about making a difference through the belief in what we’re doing. Employees want to know that they have an opportunity to make a difference at work and perhaps in the world. This can’t happen until employees and employers have the necessary “relationship” in place, and we can’t get there unless we can adapt, evolve and advance – i.e., change for the better.

Our PeopleFluent marketing team recently had the opportunity to meet with Claire Schooley, principal analyst for Forrester Research on Application Development & Delivery Professionals. We discussed a variety of topics, but the most insightful one was on change management. The fact that the speed of business leaves most companies and their workforces in the dust shall we say, and they need to be able make changes quickly and keep employee continuously developed and aligned with company goals. This is how we stay “frosty” and competitive in today’s complex global economy. One of the keys is that HR professionals actually play a leadership role in managing this critical organizational change in order to drive successful business outcomes.

We can talk all we want about creating a new workplace contract, but unless we invest in changing the culture and sustain change management, we’re not go, go, going anywhere.

It’s time for the new workplace social contract of go, go, go. Hey, I’m feeling blessed at 80 percent.

About the Author: Kevin W. Grossman is currently a Marketing Director at PeopleFluent, where he’s responsible for content marketing, product marketing, and social media outreach. Kevin also co-founded the TalentCulture “World of Work” community and co-hosts the highly popular weekly TalentCulture #TChat Show with Meghan M. Biro.

photo credit: Gavin Craigie via photopin cc