02/06/2017

Potential Legal and Risk Issues for Performance Evaluations

by OSAE Member Michele Warholic, Esq., CAE

As part of your 2017 goals, are you looking at how to improve your association’s staff performance evaluations? Since performance evaluation is an essential responsibility of managers, it should be on your mind all year, not just at the end of the year or whenever the performance review cycle ends. There are many best practices for performance evaluations, but potential liability and risk management are important concerns for associations and their managers. 

Regardless of your organization’s size, a performance evaluation process ensures that managers perform their staff oversight responsibilities. Best practices for performance evaluations, as well as sample forms, can be readily found online. The purpose of this article is to share potential legal and risk issues and some considerations to improve your association’s performance evaluation process.

1. Purpose: What is the purpose of your association’s performance evaluation process? This is important to align employee and manager expectations but also to make sure that staff do not confuse evaluation (a.k.a. reviews) with salary change or other decisions. While the purpose can be unique to your association, it is suggested that enhanced job performance and staff development should be key components of any purpose statement.
2. Consistency: Associations should establish the same performance evaluation process for all similarly situated staff. This means that all administrative assistants should be evaluated in the same process – albeit by different managers. In contrast, there can be a different process or form for managers and other staff levels. The key is making sure that staff at the same level are treated the same in the process, fully recognizing that individuals may receive different ratings and results.
3. Objectivity: The performance evaluation should be based on a fair, accurate and balanced review of the entire cycle. Statements contained within the evaluation form should be objective, not based on subjectivity, personal biases or opinions. One of the best ways for managers to achieve this goal is to maintain a file, record or log of the staff member’s work, accomplishments and results over the year. It is particularly important to use bias-free language, not inflammatory or emotional terms. Like any other important written document, you might put it aside for a few days to proofread or have an objective third party (ex: human resources or your manager/chief executive officer) review prior to its delivery.
4. “No Surprises” Rule: One of the most common complaints from employees is that they don’t receive timely feedback from their manager, sometimes hearing negative or positive feedback for the first time at the end of the year. It’s important that any issues cited in the performance evaluation have been discussed with the employee on a timely basis, as close as possible to when the behavior, event or incident occurred.
5. Balance Strengths and Weaknesses: In general, the performance evaluation should reflect both successes and challenges, strengths and weaknesses. Everyone does something well and has an area(s) for further development or improvement. To ensure clarity, managers should include examples and be specific about the behavior, skills or results expected.
6. Employee Involvement in the Process: Requiring employees to complete a self-evaluation or another form of soliciting their feedback are best practices and helpful to determine whether expectations are aligned, communicated and understood.
7. Confidentiality: As with all human resources documents, performance evaluation records should be maintained securely and only shared on a “need-to-know” basis.
8. Retention: Performance evaluations should be retained for current employees, as well as former employees, consistent with your records retention policy.
9. Non-Discrimination: Performance evaluations should be free from any form of discrimination, harassment, retaliation or other prohibited actions.
10. Performance Improvement Plans: Although not the subject of this article, managers should develop a separate process to address performance that is unsatisfactory and does not meet expectations.

One of the best ways to address these issues is to ensure that managers are trained in best practices for evaluating staff performance and your association’s policies, procedures and practices. While legal risk mitigation is an important consideration for performance evaluations, managers should also consider their ethical responsibility of fairness and the potential impact on good working relationships and overall morale if the process is not performed appropriately.   

^{This article does not provide legal advice and does not create an attorney-client relationship. If you or your association needs legal advice, please contact an attorney directly.}