Author: Daniel A. Lublin
Employees should respond to concerns
Employers seeking to dismiss their habitual underperformers usually follow a prescription for a tidy divorce: gather ammunition and create a paper trail documenting any and all allegations and concerns. Typically, this is accomplished by a series of negative performance appraisals. If the employee then wishes to go to war, there will be a mountain of evidence to overcome.
Performance appraisals can, however, be a double-edged sword. Court cases clearly indicate that employers owe a duty to provide employees with the opportunity and means required to improve underperformance, if dismissing them on those grounds. Judges require that employers prove the employee was grossly incompetent, and that progressive warnings were issued, clearly identifying areas of concern.
Therefore, for maligned employees, I often recommend that they prepare for and then fight the battle by building a supportive documentary case by first challenging a negative or unjust performance appraisal. Then, should legal confrontation ensue, the employee has the ability to contest any injurious inferences drawn by a series of unsatisfactory appraisals.
Therefore, for employees faced with a negative performance appraisal, consider the following advice:
- Document your response to a challenged appraisal in writing and request that the response be placed in your human resource file.
- Performance appraisals should be remedial in nature. Point out that the standards expected are not objectively reasonable, are beyond your capability, were never communicated, or suitable instruction and supervision were never given to assist in meeting those standards.
- Although remedial, negative performance appraisals usually contemplate corrective discipline, which may eventually support the employer’s case for dismissal. Therefore, ask for sufficient time and support to correct any alleged deficiency. Also, state that all of the company’s concerns can’t be addressed without assistance and while expected to simultaneously maintain a regular workload.
- Express bewilderment if there is any marked inconsistency with previous positive appraisals or accomplishments and point out any historical or recent achievements, such as salary increases or bonuses.
- State that prior to the appraisal, the alleged shortcoming was never verbalized and, as far as understood, you were just following the procedures or protocol in place.
- Note if there are any perceived inequities in the evaluation process of other less-scrutinized employees.
- Where specific actions or events are chastised, state your version of the events was not solicited before this criticism was levelled and then document this version regardless if it’s now sought by the employer.
- Ask for clarification and examples, in writing, regarding any aspects of the appraisal that is misunderstood or that may potentially be challenged. Point out that the explanation first provided was so vague that the underlying concerns can’t possibly be addressed.
- If there is any policy detailing the evaluation or appraisal process, point out any inconsistencies with the policy and state the appraisal did not meet the required criterion.
- An employee who wishes to keep his or her job should ensure that the tone of a written or oral response is professional and corrective, but not aggressive or accusatory. Otherwise, your letter may have the reverse effect and simply harden your employer’s position.