Kelley Stoppels Mike Stroster

© 2021 Miller Johnson. All rights reserved. 1

Kelley Stoppels

Mike Stroster

The materials and information have been prepared for informational purposes only. This is not legal advice, nor intended to create or constitute a lawyer-client relationship. Before acting on the basis of any information or material, readers who have specific questions or problems should consult their lawyer.

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Performance evaluations or appraisalsWhat is it and Why is it important?

Common Methods

Practical Tips

Effective discipline Foundations to Solid Discipline

Making a Decision

Documenting the Decision


“What a performance appraisal requires is for one person to stand in judgment of another.

Deep down, it’s uncomfortable.”

-- Dick Grote, How to Be Good at Performance Appraisals

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Two-way, individualized conversation between manager and employee about Performance

Development

Growth

Expectations (and if there is a disconnect or area for improvement)

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Lack of Management Support

Lack of Consistency

Evaluations are seen as busywork that distract from the real work that must be produced

Failure to communicate specific goals, expectations, and areas for improvement

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Benefits to Employers: Strengthen relationships and loyalty – can be effective retention tool

Improve overall performance

Increase employee engagement

Opportunity for valuable feedback to management

Succession planning / promotion opportunities

Compensation decisions

Documentation in support of employment decisions

RIF, Promotion, Performance Improvement Plan, Termination, Legal support

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Benefits to Employees:Opportunity for employees to ask questions and highlight

accomplishments

Guidance to employees on strengths and areas for improvement

Mutual understanding of job duties and goals

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Management by Objectives

360-Degree Feedback

Graphic Rating Scale

To be clear – evaluations (regardless if annual or more frequent) work in tandem with regular communication on performance!

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Managers and employees work together to identify objectives to focus on during the year Specific, clear and understandable

Measurable, verifiable, results oriented

Attainable, but challenging

Relevant to the mission

Time bound with specific milestones

Periodically discuss progress and reset goals as needed

Goals match overarching organizational goals

Work together to set method for evaluating whether objectives are met

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Most appropriate for senior management

Steps to Implement 5-10 specific, measurable goals

Collaboration to set goals – each goal is related to organizational objectives

Each goal has description and clear (task based plan) to achieve

Decide how progress will be measure and how frequently

Action taken if not achieved

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Multi-dimensional appraisal method that gathers feedback from many sources around employee

Components Self-Appraisal

Managerial Review

Peer Review

Direct Report

Customer or Client Review

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Can raise individual’s awareness of how they perform and are perceived, may help initiate coaching, or encourage self-development and change

Time consuming and requires engagement from multiple sources – some may not be comfortable providing candid feedback

Have seen used effectively for senior management

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Most common

GRS lists several factors Attendance

Quality of work

Relationships with coworkers

Factors are rated on a scale (unsatisfactory to outstanding)

Often opportunity for narrative comments

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Less time intensive to complete

Consistency in factors apply across the department / business

May be adapted for every position

Tendency to simply “check a box” without specific feedback

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Failure to prepare

Failure to listen

Failure to remain objective / personal bias

Failure to provide feedback / lack of differentiation

Failure to document!

Relying on impressions, rather than facts

Recency effect

Halo/horns effect

Inconsistent application of performance evaluation criteria

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At least annuallyConsider six month shorter evaluation paired with year-end review

Two way conversation – preferably face to face

Review past – focus on future

Objective and fact driven

Don’t sugarcoat deficiencies – this is a prime opportunity to confront (AND DOCUMENT!) poor performance and demand improvement

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Clarify performance criteria – do you have accurate and current job descriptions?Measure impact

Define success

Gather employee data and examplesAre your supervisors giving regular / informal feedback

Complete the evaluation appraisal form and narratives

Team (HR and Supervisor) should both review PRIOR to the meeting

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Before the evaluation, ask your employee to write down Accomplishments since the last review

Goals for the future

Short term (6 months to a year)

Long term (promotion)

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Avoid a stressful atmosphereNeutral location

Limit distractions

Provide advance notice

Remain calm and objective

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Set specific goals and timelines; action planUse specific language

You need to be more proactive.

You need to take more initiative in cold calling potential sales leads.

Use measurement-oriented language

Pay more attention to deadlines.

Documentation must be completed and entered every week be end of the day Thursday.

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Stay constructive – not personal Focus on performance not the person

Focus on problem solving

Active listening with open-ended questions

Avoid bias

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What accomplishment from the last year (quarter) are you most proud of?

What goals do you have for the next year (quarter)?

What obstacles are standing in your way and how can we help?

How do you think you’re doing?

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Carla had too many absences in the first quarter. She needs to improve her attendance.Carla was on FMLA during the first quarter.

“G” is doing great on the D Cell. “G” was short for “Grandpa.” The nickname given to a 61 year old

employee who subsequently filed an age discrimination claim with the EEOC.

Moral: HR and supervisors need to work together in preparing / reviewing evaluations and avoiding potential issues.

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Don’t interrupt when the employee is speaking

Don’t be afraid of silence – it’s a great tool

Be aware of nonverbal

Be honest

Document!

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Don’t get drawn in, pulled off course or defensive

Try restatement to get back on track or schedule a time to deal with unrelated concerns

Take a “time out” Postpone the interview and let everyone calm down

Have the employee prepare a written summary

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Every employee is an investment — prevention and correction of problems protects and enhances the investment

Consistency and predictability is good for: Retention

Morale

Productivity

Union avoidance

Staying out of Court

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Not tolerating misconduct and poor performance isGood for the bottom line

Expected / appreciated by most employees

An important risk management tool

Being sued by a former employee is a bad thing

Decision paralysis is a bad thing

We want our people to succeed, not fail

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1. Reasonable rule or standard

2. Clear notice to employee

3. Proper investigation – timely, thorough, fair, objective

4. Substantial evidence of guilt

5. Consistent treatment

6. Appropriate consequence

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“Reasonable” means reasonably related to theOrderly, efficient and safe operation of the business

Performance that the company can properly expect from the employee

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Employee must “obey now, grieve later”

Unless there is a serious and immediate threat to health or safety

Establish an outlet

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Identifying the rule / standard that applies

Interpreting the rule / standard that applies

What was the order, instruction or performance expectation that was given?

Can we prove that it was given?

Can we show the business reason for the rule or standard?

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Requires notice of both: The rule

The consequences of violating it

Published work rules (handbook, policy manual, labor agreement) generally fulfill this requirement, where they apply.

But also documented discussions or counseling, corrective action, performance improvement plans, annual evaluations, etc.

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For written expectations, can we prove that This employee actually received them?

They were published or distributed in a way that would reasonably have given notice to this employee?

They are clear on their face?

For oral orders or instructions, how do we prove they were given?

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Timely means: Before a disciplinary decision is made (but suspension is OK if

immediate action is required)

Promptly, for practical reasons (before the facts get stale, witnesses disperse, documents go into hiding)

Promptly, for legal reasons (no set time period, but the clock is ticking... ) especially if it’s serious enough for discipline

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Thorough means: Interviewing all witnesses who may have information (pro or con)

about whether the employee did what he/she is accused of doing

Gathering and examining all relevant documents (pro or con)

Gathering and examining all information relevant to the employee’s defenses

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Fair and Objective means: The employee’s version of the facts, and her explanations, excuses,

and justifications, are considered and examined in good faith

The people who investigate don’t have a personal stake in the outcome; e.g., a single manager should not be witness, prosecutor and judge

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Fair and Objective means: The employer pays attention to its own precedent

The employer considers all of the mitigating or extenuating circumstances

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Not knowing what to investigate

Incomplete investigation

Indiscreet investigation

Insufficient or careless documentation of the information gathered

Taking disciplinary action prematurely

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Substantial means:More than flimsy

Not necessarily perfect; not necessarily “beyond a reasonable doubt”

When viewed fairly and objectively, more persuasive than the evidence supporting the employee’s innocence

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Poorly conducted or poorly documented investigation

Failure to take into account the credibility or lack of credibility of the relevant witnesses

Evidence of predetermination

Lack of attention to or objectivity in judgment and assessment

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Consistent means: Rules, orders, and penalties have been applied in an even-handed,

nondiscriminatory manner

Management has not been lax in enforcing the rule in question

The penalty is not more severe than those prior similar cases

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Failing to investigate or consider prior cases at all (often, a failure to consult the people who would know)

In prior cases, failing to document clearly the entirety of the circumstances

In prior cases, failing to document clearly why an employee was given a break

Failing to inform employees clearly that a previously unenforced rule will be enforced

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An Appropriate Consequence means one that is reasonable in view of: The seriousness of the employee’s proven offense; and

The employee’s overall work record (may support or mitigate against a consequence).

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Failure to set the stage – demonstrating the nature of the offender and the offense

Failure to consider, or to prove, the actual consequences of the offense – safety, financial loss, effect on other employees, effect on operations, etc.

Failure to view the employee’s record objectively

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Discipline Cases:Consult with others – human resources and/ or other managers or

officials

Factors to be considered:

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Weight of the evidence

Clarity of the rule or standard

Clarity of the violation of the rule or standard

Severity of the infraction

Effect it had on operations or other employees

Likelihood that lesser disciplinary action could correct the problem

Employee’s previous record, including length of service and disciplinary history

But make note of any contractual provisions that might prevent consideration of prior discipline

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Employee’s response to the problem: honesty, remorse, etc.

How similar problems have been treated in the past with other employees

Consider alternatives Reassignment / Demotion

Performance Improvement Plan

Last Chance Agreement

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Is the accused in any protected (or potentially protected) group with respect to sex, race, age, religion, disability, pregnancy, etc.?

Has the accused raised any kind of claim or demand –harassment, workers’ compensation, medical leave request, wage claim, safety violation, request for accommodation of a disability or religious preference, etc.?

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Has the accused been involved in any other form of potentially “protected activity” – union organizing or leadership, or acting with other employees in matters related to wages, hours, or other terms or conditions of employment?

If absenteeism is any part of the reason for the employee’s discipline, have any of those absences been due to a disability, or health condition of the employee or a family member, or to care for a new child?

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If the answer to any part of these questions is yes, the risk of litigation is increased, and the company might have affirmative obligations that must be fulfilled before disciplinary action is taken

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Document it with a description of the investigation, the results, and the company’s reasoning

If the company is concerned about exposure, consult with legal counsel before recording or internally communicating sensitive information or liability concerns

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Facts

Expectations

Consequences

Strategies

Sign off

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What the employee did or did not do

What were the internal or external consequences of the employee’s poor performance or conduct?

Were there prior occurrences of performance or conduct problems? If so, was the employee notified of these problems?

If so, was a consequence for future violations established?

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What is the employee’s explanation, excuse or defenses? (Provide space)

Did the employee make any admissions?

Is there any fact from an investigation that should be included?

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Prior expectations:What is the rule, expectation, standard or requirement that was

violated?

Where does it come from (work rules, directive or instruction, code of conduct, core values, performance review, common sense, legal requirements, etc.)?

Has the employee been counseled about these expectations before?

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Future expectations:What change in conduct or performance must take place?

Within what time frame must it take place?

How will success or failure be measured?

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What will happen if the employee fails to meet the expectation? It is best to be specific

If the next step is discharge, say so

If the next step is part of a rigid sequence of progressive discipline, say so

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What will the employee do differently in order to meet the expectation?

What resources, assistance, or training will the supervisor or others provide to help the employee meet the expectation?

What follow-up or monitoring will take place to ensure the employee meets the expectation? When will it occur?

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Employee agreement to, or at least acknowledgment of, the corrective action

Consider providing alternatives

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1. If you can’t see it or hear it, it’s not real.

2. If it’s not written down, it didn’t happen.

3. If it wasn’t discussed with the employee, it doesn’t count.

4. If the employee didn’t get a copy, it wasn’t that serious after all.

5. If you haven’t heard the employee’s story, get it.

6. If the employee hasn’t seen the “F” word before the “F” word happens, think again.

7. Do unto your employee as you would have your boss do unto you.

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Kelley Stoppels Mike Stroster

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Kelley Stoppels Mike Stroster