Tis’ the season—for performance reviews! Managers do not like to give them, and employees do not like to receive them. But poor performance management can lead to legal issues, poor labor relations, and inefficient productivity.

There is no one-size-fits-all method for performance management, but below are tips for implementing effective performance reviews:

1. Management and Legal Training. Managers are central to the performance review experience; yet, coaching and development does not come easy to most managers. Managers can often inform workers when they are doing a great job, but are your managers ready to have the hard conversations with poor performers? Are your managers capable of driving an employee’s behavior in the right direction? It is imperative for managers to receive management training focused on strong leadership and effective communication skills to promote employee productivity.

   Managers must also be trained and have the appropriate understanding of employment laws and company policies. Companies should ensure managers are prepared to both conduct and document legal and effective performance reviews. For example, it would not be appropriate for a manager to assess an employee’s teamwork as “low” solely because coworkers cover the employee’s Saturday work because that employee exercises the Sabbath on Saturdays. Similarly, a manager cannot make negative comments about an employee’s attendance when those absences are covered by the FMLA, ADA or PWFA.

2. HR Should Be The Driving Force. HR should be involved in both the process of conducting reviews and the substance of performance reviews. HR should ensure managers are actually scheduling and conducting performance reviews. HR should work with departments to implement standardized review categories with a focus on objective measures as opposed to subjective measures. Standardized categories for similar jobs help avoid perceptions of unfairness. Then, HR should ensure managers are conducting effective reviews and not simply “going through the motions.” HR may even consider reviewing draft performance reviews prior to the meeting. An HR peer review process will ensure inappropriate factors are not being considered.

   From an HR standpoint, policing the performance review season is a great opportunity to ensure consistent treatment of employees, identify internal training deficiencies, and assess manager/employee relations.

3.  Documented Support. Written performance evaluations serve three key functions:  (a) evidence of inadequate or unsatisfactory employee performance, (b) employee knowledge of this deficiency, and (c) proof of fair treatment. The review should use clear, concise language and cite specific examples supporting the feedback. Reference to specific incidents can be very helpful in subsequent litigation to show examples of why a particular employee received an adverse employment action unrelated to any protected characteristic. A manager’s goal is to improve performance or separate a poor performer with low risk of legal claims.

4. Two-Way Communication.  Performance reviews are a great way to open the door to getting to know employees and building positive labor relations. Managers should spend some time allowing the employee to lead the conversation. For example, managers should be learning about an employee’s goals within the company, ways the employee’s job can improve, and ways the manager can help an employee achieve their goals going into the next year. Performance reviews allow managers the time to have this necessary impactful dialogue.

   But note, managers should be cautious of employees discussing workplace issues on the behalf of other employees—such conduct may be protected activity.

5. Self-Assessment. Performance reviews are a great tool for managers to self-assess their own performance management throughout the year. For example, too often there is no documentation in an employee’s file to support a negative performance review. In these circumstances, a manager needs to consider ways to document performance issues throughout the year such as notes to the file regarding communications with the employee, emails to Human Resources documenting the performance issue, or placing the employee on a written performance improvement plan. Year-end performance feedback should not be unexpected news to the receiver. If it is, managers need to self-asses their performance management.

6. Conclusion. Performance reviews are a great tool to measure an employee’s performance over the year, determine whether their performance meets the expectations of the job, and help an employee improve in any weak areas. Performance reviews are also a great source in identifying business and operational improvements and avoiding legal risks.

If you have any questions about creating or enhancing your performance review procedure to reduce legal risks and promote effective operations, please reach out to Burr & Forman.