Staying On Top Of Employee Performance As An Effective Way To Mitigate Risk

Employee performance issues often create a real sense of angst for employers. To avoid such angst, many managers choose to ignore performance issues or only subtly address these issues in a year-end evaluation.

As a result, employees can be caught off guard when their employment is terminated for performance reasons and may not even realize their manager’s level of frustration with their performance.

Many times, this causes employees to suspect discrimination or unlawful motivation for the termination decision. The result: costly litigation or administrative charges that could have been avoided with more honest communication.

Employees are hired to perform specific job duties. When a worker falls short in performing those duties, he or she should be held accountable as soon as the shortcoming occurs. Waiting until the next performance review to address an issue is a detriment to both the employee and the employer.

  • First, it deprives the employee of the opportunity to address and correct the concern and improve before a formal evaluation.
  • Second, it causes confusion. If the issue results in a poor overall review, it can lead to feelings of distrust and resentment by the employee because it never was addressed prior to the evaluation. On the other hand, if the issue is addressed but does not result in a poor overall review, the employee may conclude that the issue is not significant.

The importance of communication

For these reasons, prompt and honest communication is the key. As soon as a performance issue arises, the manager should meet with the employee to discuss the issue.

The manager should clearly communicate the nature of the performance deficiency and explain the improvement needed. All communications with employees regarding their performance should be documented. Even if a formal corrective action is not given to the employee, it is imperative that the manager document the issues discussed and the date of the conversation.

If the employee’s performance does not improve after an initial discussion, it may be appropriate to issue a formal written corrective action prior to termination of employment.

Such corrective action should refer back to the prior discussion, showing this is not the first time these issues have been addressed with the employee. If the employee refuses to sign the corrective action, the manager can sign the document with a note indicating that the employee refused to sign.

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Some employers choose to prepare a formal performance improvement plan, commonly known as a PIP, where the employee is expected to meet certain objectives within a designated period, such as 90 days. Employers should be cautious about imposing requirements upon the employer as part of the PIP process.

Fairness and an opportunity to improve

For example, a typical PIP may indicate that the employee’s supervisor will hold weekly meetings with the employee or will meet with the employee every 30 days to review the employee’s progress in meeting the required objectives. If the employer does not keep its end of the bargain, and the end result is termination, it certainly may lead to feelings of resentment and suspicion that the performance issues were not the true reason for the termination decision. Therefore, employers must carefully follow the terms of their PIP and document any periodic meetings or reviews that occur during the PIP process.

At the end of the day, employees want to know that they have been treated fairly. Likewise, judges and juries want to see that employees have been treated fairly.

An employer’s consistent, documented record of promptly addressing performance issues and giving employees an opportunity to correct those issues prior to termination will go a long way toward reducing the risk of litigation.

Ashley Manfull is a senior attorney in the Akron, Ohio office of the law firm Vorys, Sater, Seymour and Pease LLP (Vorys). A member of the labor and employment group. her practice focuses on representing employers in employment-related litigation and defending them against charges before administrative agencies. Ashley also counsels employers on effective employment practices and compliance with federal and state labor laws, including civil rights laws, the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and wage and hour law. Contact her at ammanfull@vorys.com.

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