Clearly described expectations.  Whether written in a position description or sent in an email, clear expectations need to be communicated to employees and the documentation supporting a termination or other negative personnel action needs to include evidence that the employee knew what was expected. If a sales rep needs to hit $1 million in sales each year, that expectation should be explained to the employee and the explanation should be documented.  If an electrician is expected to install an outlet to Electrical Code specifications, the job description should say so.  While this may seem obvious, failure to understand what is expected is a major component of poor employee engagement and most certainly a factor in employee performance. Further, failure to prove that an employee understood the employer’s expectations has derailed many a defense to an employment claim.

Examples of poor performance.  Calling an employee “difficult,” “unresponsive,” or “unprofessional” isn’t very helpful. Examples can be helpful, whether in a formal review or an informal feedback session. Employees who are given specific examples of poor performance are more likely to turn their performance around, and documentation that includes specific examples of poor performance is very helpful in defending personnel actions. 

Documentation!  You’ve seen the word “documentation” several times already in this post.  That’s because your employment lawyer wants very much to have some when explaining or defending what you’ve done. Think about this: when asked if an organization is “negligent” if it does not properly document an employee’s performance problems, 91% of respondents to a Defense Research Institute survey said yes. Employees, unions, agencies, and juries expect more than an employer’s unsupported assertion that it had good reasons for the action it took.  Remember that documentation of personnel actions does not necessarily mean completed, formal performance reviews.  It can mean an email recapping a meeting about performance, a memo to an employee outlining deficiencies and needed improvement, or even a supervisor’s handwritten notation that something happened or something was communicated on a particular day. 

Evidence of a chance to improve. In our experience, jurors in employment cases believe employees need a chance to improve performance before they are terminated.  This may not be legally required, but juries and judges like it much better if employees have a reasonable chance to correct performance problems. 

Consistency.  We like it when similarly situated employees are treated the same.  We don’t like it when similarly poor performance gets one employee fired and another employee a mere warning.  We don’t like performance standards that are applied differently to different groups of employees.  We especially don’t like it when employees in a protected class seem to be held to tougher standards than non-protected class employees.

Timeliness.  If you have told your employees that they will be reviewed annually, you need to honor that commitment (or tell them they won’t, or may be, reviewed at a particular interval).  Delayed or non-existent evaluations are less credible than reviews done on the schedule the employer created and announced.