meetingroomWriting employee performance reviews can be a thorny task for managers and employers. Many supervisors find writing employee performance reviews to be painful and struggle to provide feedback that is accurate but does not overly discourage the employee. Other supervisors tend to procrastinate writing employee performance reviews, resulting in them being prepared in a rush and without sufficient detail. Many times, supervisors complain that employees need to improve, but the employee’s performance reviews say that the employee met or exceeded the company’s expectations.  This can lead to a huge headache for the business if the employee has to be fired later on and alleges the termination was wrongful because of inartfully prepared performance reviews along the way.

The truth is that employment claims are often significantly shaped on the performance reviews given to the employee by the company –  they can make or break an employment claim. If an employee is fired, but the performance reviews do not suggest progressive discipline applied to the employee to rectify repeated violations of company policy or performance shortcomings, then the employee can feel as though the termination was somehow wrongful or came as a surprise. On the other hand, supervisors do not want to have employees that feel underappreciated or criticized for minor matters, and can tend to gloss over issues that should be addressed in performance review, which might give support to the viability of an employment claim.

If you have found yourself struggling when it comes to writing employee performance review, here are some tips:

# 1 Tune Out “Motivational” Tips.  If you Google tips on writing effective performance evaluations or reviews, most websites will provide a long list of how to provide “motivational” reviews that “turn negatives into positives,” direct supervisors to providing “constructive feedback” only, or preach that “negative comments don’t ever work.” These tips are focused on motivating employees — not providing risk management tips for the employer. The purpose of a semi-annual or annual performance review is not and should not be to motivate employees: this should be done during the course of work through positive daily interactions, encouragement, support, and other personal interaction.  Focus your employee reviews on providing facts that accurately convey the employee’s performance as a whole  – not using the review as an encouragement device.

# 2 – No Sugarcoating.  Performance reviews must provide employees with a clear and honest assessment of how they are doing.  That is the very purpose of a performance review: to notify the employee is to have employees doing and point out areas where the employee needs improvement.Too many supervisors make the mistake of sugarcoating issues or areas of improvement that the employee needs to work on. Obviously this is done because the supervisor has a good relationship with the employee, or does not want to hurt the employees feelings. But writing employment review is not a likability contest, and being effective supervisor sometimes means not being well-liked by the employee being supervised. If an employee is not meeting expectations, you must say so in the performance review, even if it means disappointing the employee to a degree.

# 3 –  Separate Performance and Other Issues (Medical Conditions, Leaves, Childcare Responsibilities, Background, etc.). The performance review should be focused on the employee’s performance —  not other issues, such as the employees health issues, family leave requirements, childcare obligations, physical characteristics, or other demographic details such as the employees background, language capabilities or shortcomings, sexual orientation, or other details that could make it seem as though comments about protective characteristics are being made in the employee’s performance review. In California, it is unlawful for employers to discriminate, harass, or retaliate against employees based on certain protected classes, which include national origin, religion, background, language, sexual orientation, maternity status, and others.  Writing a performance review that  blurs these boundaries could result in allegations of wrongful conduct being alleged against the author of the performance review.

# 4-  In Writing with Employee Receipt. The performance review should always be in writing, and should have a designated place for the employee to acknowledge receipt of the performance review. The reason is to memorialize the employee strengths and weaknesses, in writing, and to ensure that the employee is acknowledging receipt of actually receiving the performance review. Employee does not need to necessarily agree with what is being said in the performance review, simply that they received it.

#5Accuracy. Finally, before you turn in the performance review to the employee, make absolutely sure that it does not contain any inaccuracies – such as the wrong employee’s name, wrong information, typos, or other facts that are not accurate or applied a different employee. You would be surprised to know how many performance reviews contain the wrong information for the wrong employee, making it very hard for the supervisor to defend employment decisions made, when the review is full of errors.

Writing employee performance reviews is not pleasant for the supervisor or the employee, but with a little planning, performance reviews can serve their purpose while keeping the employee-employer relationship productive, healthy, and successful.

AXIS Legal Counsel’s Business and Corporations Practice provides legal advice to numerous businesses with a variety of legal matters involving employees and labor law. We can assist in establishing compliance with California’s Employment and Wage & Hour laws, employee handbooks, leave policies, promotions, demotions, terminations, payroll matters, and other employment requirements.  AXIS offers full-service legal support to businesses and companies, and can also assist your company with business formations and governance, contracts, deals, and transactions, administration & operations, risk management / insurancelabor/employment matters, intellectual property, healthcare, crisis management, directors/officers, private/data security, technology, statutory/legal compliance, and business litigation when disputes with other businesses arise.

For information on retaining AXIS Legal Counsel to represent your business in connection with any legal matter, contact info@axislegalca.com or call (213) 403-0130 for a confidential consultation.

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