Tips for Ensuring Legally Defensible Performance Reviews

February 23, 2010 in HR Best Practices


Implementing a faulty or sloppy employee review system can put your company at risk.  One misstep can lead a disgruntled employee to “pull the trigger” on a hairy lawsuit.  So as a responsible manager, how do you keep your company out of the crosshairs?

Here is a quick list of best practices for ensuring your performance reviews are legally defensible:

  1. Develop adaptable appraisal forms.  Use flexible forms evaluators can change to suit the type of position available.  The forms should allow evaluators to: incorporate specific job criteria; weight and prioritize attributes and job responsibilities; easily keep accurate, detailed annual review records for all employees.  Should you need to protect your company in the case of a dispute, this standard documentation will provide valuable evidence that evaluators conducted all appraisals in a consistent manner.
  2. Train your evaluators.  Provide written instructions on the purpose and mechanics of your review system.  Teach evaluators to base appraisals upon observed evidence – never “gut feelings” or other subjective criteria.  Include information on potential EEO problems and emphasize the importance of accuracy.  Supplement written instruction with role playing, and require evaluators to sign a statement saying they’ve received and reviewed the instructions.
  3. Clearly communicate the review process ahead of time.  When review time comes around, make sure employees know:  the purpose of the reviews; the impact they’ll have on employees’ work; how the reviews will be conducted; what to expect during discussions.
  4. Require employees to agree to primary job duties.  During the evaluation, ask each employee to review the job duties on which he has been rated.  To prevent later debates, require each employee to sign a statement that the list provided constitutes an accurate and complete list of his major job duties.
  5. Safeguard against inaccuracy and evaluator bias.  Emphasize the importance of avoiding stereotypes based on race, sex, age or any other characteristics.  Monitor evaluators and develop a system of cross-checks to ensure evaluators do not go too easy on employees, or consistently rate a particular group lower than another.
  6. Summarize and distribute reviews.  Have evaluators write up salient aspects of each employee appraisal and distribute copies to all relevant parties.
  7. Have each employee review and sign his evaluation.  After being given the opportunity to review and write in his own comments, require each employee to sign and date the evaluation.  This will discourage employee attempts to dispute the evaluation down the road.
  8. Keep a regular review schedule.  Like any other inconsistency in employment actions, failure to provide timely reviews can become the basis for an EEO charge or other frivolous lawsuit.
  9. Provide for appeals on grievances.  Give employees the right to appeal performance reviews to a higher level supervisor.  In addition to being a goodwill gesture, this process will also undermine the case of any employee who later attacks the evaluation in an EEO or wrongful discharge claim.

Make it Easier on Yourself

Remember, our temporary employment services save you the risks, time and hassles associated with performance reviews.  Contact us today to learn more.