B
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BE N
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NEWS
WINTER 2013
Human
Resources
Newsletter
Performance Evaluations:
A Must Do!
By Rebecca Crane and Tim Twigg
A terminated employee files
a lawsuit against you alleging
wrongful termination based on
illegal discrimination. From your
perspective, the claim is “bogus”
because you fired the employee
for poor performance.
As a result, you assume your
attorney will make this go away
fast, since you believe you are “in
the right”. Wrong! As any attorney
would do, s/he asks for any and
all documentation that you have
establishing the poor performance
of the employee. You’ve got nothing--or very little that documents
the poor job performance. You
never (or rarely, or inconsistently)
conducted performance evaluations during the employee’s time
with your busineess.
What’s the result? Your attorney starts talking about the need
for documentation to back up
your story and without it maybe
a settlement should be considered
since fighting the claim would,
more than likely, be futile without
the necessary documentation.
The burden of proof falls
squarely on the shoulders of you,
the employer, and the best form of
proof is documentation, particularly, in this case, performance evaluations. Without them, you lose,
and your profit takes a significant
Bent Ericksen
& Associates
“But wait”, you say. “I’m an
“At-will” employer”. And you’ve
always assumed that “At-will” is
like a “get-out-of-jail-free-card.”
Wrong again. Not all employees
are created equal­­­­─some are riskier
than others to terminate. Why?
It has to do with all the antidiscrimination and retaliation laws
that protect most employees in
the workplace. These laws protect
people from illegal discrimination
based on any number of “protected characteristics” such as race,
sex, age (40+), disability, religion,
etc. They also protect individuals
from retaliation if the employee
has availed him/herself of a specific right given to him/her. Thus,
terminating an employee who falls
into any of these categories could
result in a claim of illegal discrimination or retaliation even though
that may be farthest from the truth.
Your only hope, as mentioned earlier, is documentation. Wouldn’t
it be better to avoid all of this in
the first place? Understanding the
need for documentation today and
being proactive is the best form of
prevention.
Sadly, many employers do
not conduct formal performance
appraisals on an ongoing and regu-
lar basis. They feel uncomfortable
“criticizing” employees or they do
not they think it is time well spent.
Yet, the financial consequences
can be significant. The real question, given today’s litigious society and trends, is: “Can you afford
NOT to conduct performance
evaluations?”
How it all goes wrong
Terminations that come as a
surprise to employees are ripe
with potential liability issues.
The terminated employee usually
ends up being angry, resentful and
searches for possible avenues for
“revenge". In assessing the situation, terminated employees almost
never believe their own performance caused the termination,
especially if the employer never
told them otherwise.
Objectives of a good
performance program
• Provide data for use in wage
adjustments, promotions,
reassignments, disciplinary
actions and/or discharge.
• Provide objective and factual
evaluation (feedback) of an
employee's performance,
rather than an emotional or
snap judgment.
• Improve employee’s job
satisfaction and morale by
Article
continues on page 2
Q+A
TM
hit (approximately $25,000.00 on
average for settlements).
Q:
When our employees work overtime, we bank those hours
and let employees take time off at a later date. We do not pay
them overtime. Our employees really like this system. However,
a colleague of mine said this is illegal. Is she right?
ANSWER: The system you have established with your employees is a version of “compensatory time” or, “comp
time.” Under a “comp time” scenario employees receive the equivalent of time off instead of compensation at
time and a-half for working overtime. This type of program is currently illegal in the private-sector for non-exempt
employees. Employees who work overtime must be paid time and a-half for all of those hours. You cannot bank
those hours for time off later, despite the fact that your employees seem to like it.
Continued from
from page 1
communicating interest in
their progress and personal
development.
• Provide information for an
employee's need for training.
• Provide a forum for setting goals and performance
standards for the next year or
appraisal period; and
• Provide an opportunity for
each employee to discuss job
concerns and interests.
Performance Review Intervals
To the question, “When should
I evaluate performance?” The
short answer is: all of the time.
Nothing you include in a formal
performance review should
come as a surprise. Don’t wait
until the formal review to share
compliments and constructive
criticism; use ongoing opportunities to advise employees of their
progress. Know that by providing positive feedback throughout
the year you will inspire better
performance. As a general rule,
positive feedback can be given in
front of others, but negative feedback should be given in private.
New employees should
receive two performance evaluations in the first 90-days: one
after four weeks and a second
after 11 weeks. This approach
compels you to observe the new
employee’s performance closely.
For legal and managerial reasons,
it’s better to terminate someone’s
employment during the 90-day
orientation and training period
rather than later.
After the first 90-days, every
employee should receive a
performance evaluation at least
once a year. Throughout the
year, keep notes related to each
employee’s performance. This
practice will enable you to prepare a more comprehensive and
accurate analysis of the employee’s overall performance.
Evaluation Forms
Although we recommend
three performance evaluations
be completed in an employee’s
first year of employment, the
forms used can be different and
the time spent conducting the
performance evaluation does
not have to be lengthy in every
case.
A short, simple form covering a few major components
of the new employee’s performance would suffice for the
4th and 11th week evaluation
stages. Performance factors
should include the key duties
and responsibilities on which
an employee's performance is
evaluated. Meeting with the
employee to cover these areas
takes very little time in most
cases.
A more complete performance appraisal covering such
BOP “Bent-on-Personnel” Quarterly HR Newsletter
The BOP Newsletter is published quarterly by Bent Ericksen & Associates,
P.O. Box 10542, Eugene, OR 97440. Copyright © 2013, all rights reserved.
No part may be reproduced in any form without the written permission of
Bent Ericksen & Associates. Printed in the U.S.A.
Subscription rate:
$125 per year (no charge for Bent Ericksen clients on Annual Support Agreements).
Editorial Staff:
Michelle Allen, Rebecca Crane, Joanne Gains, Frank Hotchkiss, Tim Twigg
BOP NEWS—WINTER 2013
items as quality and quantity of
work, job knowledge, and staff
and patient relations should take
place for all long-term staff.
Each of these items should have
some subsections that record
the levels of performance, for
example a rating range of 1 to
5 whereby “3” denotes satisfactory performance, a “1” equates
to excellent performance, and
a “5” would mean significant
incompetence.
Writing Evaluations
As always, be factual and
honest when writing a review.
The evaluation should represent
a true picture of the employee’s
performance or lack thereof.
This is particularly useful when
justifying why a certain staff
member was discharged and
another was not if a decision is
ever challenged.
There are many pitfalls and/or
mistakes to avoid when writing
the evaluation. Here are some
examples of rater errors:
• Recency effect: occurs when
you focus on events that are
most recent to the time the
evaluation is being written and neglects to provide
equal consideration to events
throughout the entire evaluation period.
• Central tendency: occurs
when you decide it is easier
to rate everyone as “average” and doesn’t differentiate
between top performers or
bottom performers.
• Leniency & strictness error:
similar to central tendency,
leniency errors occurs when
you rate everyone with high
marks and strictness is the
opposite with everyone
receiving low marks.
• Halo & horn effects: In
both of these cases, you are
judging the whole of the
individual’s performance on
one aspect that is either good
(halo) or bad (horn) without
really thinking about the employee’s other characteristics
separately.
• Contrast error: in this case
you are judging employees
against one another rather
than using established performance standards. As a result,
a group of employees who
are mediocre may result in an
excellent rating for the one
employee who is minimally
better than other employees
or a poor rating if others are
performing relatively well
because the comparison is
to people rather than actual
performance criteria.
• Rater bias error: occurs when
your own personal prejudices, stereotypes, and values
cloud the rating of employees who fall into the group(s)
negatively judged by you.
Continues
on back page
This newsletter, which was specifically prepared by the editorial staff of Bent Ericksen
& Associates, is not designed to render legal advice or legal opinion. Such advice may only
be given by a licensed, practicing attorney, and only when related to actual fact situations. For
client service, order information, questions, comments, or materials for inclusion write:
Bent Ericksen & Associates
PO Box 10542, Eugene, OR, 97440
800/679-2760 or visit our web site at www.bentericksen.com.
TM
Continued
Conducting the evaluation
meeting
Of course, after finishing the
writing portion of this process,
the employer has to conduct
the part that most employers
dread–the communication with
the employee about his/her
performance. Yes, this meeting represents an opportunity
for many bad things to occur,
especially when the employee is
a poor performer. And, as with
anything, how it is approached
initially makes all the difference
in the world.
An employer can view this
as an opportunity to “slam the
employee with every negative
thing s/he ever did and really
hammer down on his/her inadequacies” or, the employer
can see it as an opportunity
for coaching, development,
and growth. Here’s the reality:
there is no changing the past,
what’s done is done. Therefore, it is more appropriate for
the employer to focus on the
future instead of the past. No
amount of browbeating will
change events that have already
occurred, but the right approach
to correct the behavior may do a
lot to improve the future.
Prepare for this discussion
in advance, be specific about
the reasons for the ratings both
good and bad, decide on the
steps for improvement, if necessary, reinforce behaviors that
are desirable, and emphasize
development. Allow the conversation to be a two-way street.
Enlist the employee in also
offering thoughts, ideas and/
or solutions for improvement.
Clear up any misunderstandings that may be present, and
work with the employee to
create an action plan for going
forward. This method, as
opposed to lecturing, concentrating only on the negative, or
being overly critical, will help
enhance the relationship and
allow everyone to walk away
from the meeting feeling better
not worse.
Conclusion
Successfully managing
performance can lead to better
employee morale, increased
motivation, and greater
employment satisfaction. Performance appraisals, when
done well, are an excellent tool
to support improved performance.
Performance appraisals are
also part of solid documentation
practices that become safety
measures for the future in the
event it is ever needed to support your management decisions
as legitimate and non-discriminatory. They can be an effective
system for developing positive
staff relations and correcting
poor behavior, but not if you
only use them as a punishment
tool. Your practice depends
on employees as the “human
resource”; why not make that
relationship as good as it could
be? Well done performance
management systems can do
that if you apply them appropriately.
Q+A
Q:
As part of our marketing program, we like to put photos of our employees on our
website. We may also post qualification information about employees on the website as
well. We want our clients and potential clients to know who they are working with and feel
confident about their choices. An employee said she did not want to be included in this, which is frustrating. Do we have to accommodate her request?
ANSWER: The employees’ request should not be ignored, nor should the employee be subject to any adverse action (i.e. demotion, termination, etc.) as
a result of the request. There can be many valid reasons an employee may have for not wanting to be included in this marketing program. For example,
it could be the employee is starting a new life after removing herself from a domestic abuse situation and doesn’t want to be discovered, or it could be
as basic as just wanting privacy. Regardless of the reason, you should consider being able to market your business and your employees without divulging pictures and private information on a very public website. If you wish to continue with this practice, please consult legal counsel first as privacy laws
vary from state to state.
Q:
We would like to install surveillance cameras in several locations of our workplace. These cameras
will record activity and not sound. Only authorized personnel will review the recordings such as supervisors and Office Managers. What kind of notification do we have to give our employees?
ANSWER: Formal, written notice to employees informing them that they are subject to surveillance cameras in the workplace can reduce employers risk
of liability. This notice should clarify the employees’ expectations of privacy in the workplace. As an example, inform them where the cameras are located and explain that they are not placed in areas where privacy can and should be expected like bathrooms and locker rooms. Let them know the reasons the recordings will be viewed and by whom. Be sure only authorized personnel with legitimate business reasons will review the surveillance videos
and have them do so in private areas where others will not be able to see it. Distribute the policy to all employees and have each one of them sign a
form acknowledging they are aware of the policy. One last note, be sure you check with state laws regulating video surveillance and comply with any
specific regulations.
For personnel questions or advice on a specific personnel issue, e-mail us at: info@bentericksen.com
Did You Know?
DID YOU KNOW?
The IRS Released the Mileage Reimbursement Rate for 2013?─
The Internal Revenue Service issued the 2013 optional standard mileage rates used to calculate the deductible costs of operating an automobile for
business, charitable, medical or moving purposes. The rate for business miles driven during 2013 increases 1 cent from the 2012 rate; the medical and
moving rate is also up 1 cent per mile from the 2012 rate. Beginning on Jan. 1, 2013, the standard mileage rates for the use of a car (also vans, pickups
or panel trucks) will be:
• 56.5 cents per mile for business miles driven
• 24 cents per mile driven for medical or moving purposes
• 14 cents per mile driven in service of charitable organizations
The standard mileage rate for business is based on an annual study of the fixed and variable costs of operating an automobile. The rate for medical and
moving purposes is based on the variable costs. Taxpayers always have the option of calculating the actual costs of using their vehicle rather than using
the standard mileage rates.
DID YOU KNOW?
California Enacted a Law Restricting Disclosure of Passwords for Personal Social Media? ─
California Labor Code § 980 has been modified to provide that an employer cannot request or require an employee or job applicant to (1) disclose
their personal social media username or password; (2) access their personal social media in the employer’s presence; or (3) divulge any personal social
media. The statute does not affect an employer’s right to request the disclosure of an employee’s personal social media if the employer reasonably
believes that it is relevant to an investigation of employee misconduct or a legal violation, provided the social media is only used for investigatory
purposes. Further, the statute does not restrict an employer from requiring an employee to disclose a username or password used to access an employerissued electronic device.
DID YOU KNOW?
Washington D.C. Banned Bias Against Unemployed Job Applicants ? ─
The Unemployed Anti-Discrimination Act of 2012 makes it unlawful for all employers and employment agencies to consider the unemployed status of
an applicant when making employment and hiring decisions. Although other states have enacted similar regulations, Washington D.C. has the broadest
job protection for the unemployed.
BOP NEWS—WINTER 2013
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Discrimination Lawsuits are Down—
Recently released statistical data from the Equal Employment Opportunity Commission (EEOC) indicate the total number of lawsuits dropped
in fiscal year (FY) 2012 compared to FY 2011. In FY 2012, the EEOC only filed 122 discrimination lawsuits against employers – this is less
than half from FY 2011. What’s to attribute to this? It is surmised that it is a result of some rulings by the courts in which the EEOC was slapped
down for “shooting first, aiming later.” It appears the agency may be taking a different approach; one that is more selective and careful. In fact,
the EEOC recently tweeted that employers can expect “quality over quantity” in the coming year as it relates to lawsuits filed.
Minimum Wage Rose in Ten States as of January 1st—
Although the federal minimum wage rate will remain at $7.25 per hour in 2013, ten states had increases. Arizona’s new rate is $7.80; Colorado’s
new rate is $7.78; Florida’s new rate is $7.79; Missouri’s new rate is $7.35; Montana’s new rate is $7.80; Ohio’s new rate is $7.85; Oregon’s new
rate is $8.95; Rhode Island’s new rate is $7.75; Vermont’s new rate is $8.60; and Washington’s new rate is $9.19.
New Toolkit Available from the U.S. Department of Labor (USDOL)—
In November 2012, the USDOL launched an online Workplace Flexibility Toolkit. This new kit gives employers advice on workplace flexibility
policies and practices, which includes links to case studies, tip sheets, reports and additional information for employers, employees and policymakers. Go to www.dol.gov/odep/workplaceflexibility and click on “Employer” for more information.
Distracted Driving Cases Cost Employers Millions—
If you haven’t implemented a policy banning employees from using cell phones while driving to either text or talk, you should do so immediately. Once in place, enforce it. Accidents causing death and injuries from employee’s texting and/or talking while driving have resulted in multimillion dollar verdicts and settlements against employers. For example, Coca-Cola had a $24 million dollar verdict against them. Three other
recent settlements resulted in $24.7 million, $21.6 million, and $16.1 million. The U.S. Occupational Safety and Health Administration has a
distracted driving initiative that might set up a strict liability argument for plaintiffs suing employers over injuries resulting from crashes caused
by distracted driving.
WHAT’S NEW
In Employment Compliance
California Expands Discrimination Protections—
Two new bills in California will expand the Fair Employment and Housing Act (FEHA). FEHA provides protections against discrimination and mandates reasonable accommodation in some instances. Following are the new protections for job applicants and employees:
• ­­Religious dress and grooming practices, subject to limited exceptions.
• Amends prohibited sex discrimination to include discrimination against an employee on the basis of breastfeeding or a breastfeeding
related medical condition.
New Job Reference Immunity Law in Nebraska—
This new law grants civil immunity to employers who provide job reference information to prospective employers on individuals who currently
work, or formerly worked, for the employer. The law authorizes disclosure of certain specified information such as the employee’s most recent performance review, attendance information, and the reasons for separation of employment. Prior to providing such information, the employer must
obtain written consent from the current or former employee.
California Expands Access to Personnel Files by Former Employees—
The old law regarding access to personnel files did not explicitly allow former employees to inspect their personnel files. Now, with the new amendment, current and former employees, as well as an employee’s representative, have the right to inspect and receive a copy of their personnel records.
This new law also allows employers to take reasonable steps to verify the identity of the current/former employee or representative prior to providing
the access. Employers must also provide a request form for inspection or copies of personnel records upon a verbal request from the employee or a
representative and may designate a person to whom personnel records requests should be made.
Under the new law, if an employee requests a copy of his or her personnel file, employers must provide a copy of the whole file, subject to charges
for the actual cost of reproduction. The amendment specifically states that employers must make the records available for inspection or provide
copies within a reasonable time not to exceed 30 calendar days from the date of a written request. A mutual agreement for an extension cannot exceed
five extra calendar days. Employers may redact the names of non-supervisory employees from personnel records that are produced or copied. The
amended statute requires an employer to retain personnel files for at least three years after an employee’s termination. Other requirements apply; see
the whole text of the new bill for more information.
BOP NEWS—WINTER 2013