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 BLR.com 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.