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EMPLOYEE PERFORMANCE.
Term Paper ID:26515
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Essay Subject:
Legal analysis of management's evaluation of workers. Equality, standards, data storage, promotions & termination, court decisions.... More...
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11 Pages / 2475 Words
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Paper Abstract:
Legal analysis of management's evaluation of workers. Equality, standards, data storage, promotions & termination, court decisions.
Paper Introduction:
LEGAL ASPECTS OF PERFORMANCE EVALUATIONS
Employee work performance evaluation can be defined as the process of identifying, observing, measuring and developing human performance in businesses and organizations. The identification element of an employee performance evaluation is the process of determining what areas need to be studied by the evaluators (Cardy & Dobbins, 1994, p. 1). Human resource performance evaluation forms are then created based on the criteria and relevant characteristics that need to be reviewed and monitored within an organization.
Performance is difficult to accurately measure, and it has been one of the most vexing problems that continue to plague human resource managers
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The use of properly crafted evaluation forms can help avoidsome of the subjectivity inherent in the evaluation process by ensuringthat all employees in the same job classifications are reviewed accordingto the same set of performance standards. What to do about performance appraisal. When news of who was in line next for promotions got out tothe other workers, another employee caused a confrontation in the plantoffice by exclaiming that he would not work for that "nigger." To pacifythe irate employee, he was promised to be put in line over Evans for thenext promotion. If anemployee is under-performing, then some measure needs to identify thedeficiency and offer corrective action. No law states that an employee is entitled to aperformance evaluation. 3).Without such evaluations, a business would have trouble gauging its successand future direction. A good policy manual will help save the employer time and moneybecause it documents everything an employee needs to know throughestablished policies and procedures. In the case of Scott v. 67) The employee had been a productive and successful employee,based on his history of successfully completed sales and performance. Employees who arepermitted to be more actively involved in the evaluation process tend tofind the system to be fair and then are more likely able to positivelyhandle criticism and feedback about their performance (King, 1984, p. It was shown in court that the company's management was aware ofthe moonlighting business and did not take any action showing any form ofdisapproval. In a market-driven economy,business organizations must be able to operate within a reasonable measureof efficiency in order to meet the demands of consumers. Price Waterhouse (1987), a femaleemployee's performance evaluation became the subject of a lawsuit after theemployee was denied partnership in the major accounting firm. (1994). NewYork: AMACOM American Management Association. ix). The policy manualmust be carefully worded, and managers must be trained on how to implementthe policies. The modernculture of employment has modified the concept of at-will employment.Employees now have the expectation that they will have some entitlement toretain their jobs as long as they continue to perform to some attainablestandard (Weiler, 199 , p. Itwas this history of successful sales that help the employee maintain hisrights to the commission that was rightfully due to him in this case. (Weiler,199 , p. That manager had a lower salary thatsaved the company money. However, the act ofreplacing the older manager with the younger manager violated the federallaws set into place to protect against age discrimination in the workplace. 67). In deciding in favor of Hopkins, the court recognized that thepromotion standards were not evenly applied between men and women at theaccounting firm. 96, 97). Good communication and a fairly applied set ofstandards will help foster the employees' commitment to the company andcreate better working relationships (King, 1984, p. The company may have thought it was making a wise business decisionwhen bringing in the younger manager. Moles, R. (1991). Fair, square and legal: Safe hiring, managing& firing practices to keep you & your company out of court. Meridian Joint School District (1996), aschool counselor sued for wrongful discharge after the school districtrefused to renew his contract at the end of the school year. National Cash Register (1977) set aprecedent limiting the traditional business concept of at-will employment.A commissioned salesman was fired after having made a substantial sale forthe company, but before he was permitted to collect his large commission onthe sale. For employers to avoid these types oflegal entanglements, the evaluation process should attempt to recognizeareas where employees are performing acts that are encouraged as a matterof public policy or are refusing to do acts that are discouraged as amatter of public policy. 1997). Performance evaluations are an essential management tool and do notimpose a hardship on employees when properly implemented. Bothemployees had worked for the company for more than 2 years. C. The job's criteria, experience and skills then buildinto the goals by which an employee's performance can be measured (Weiss,1991, p. Public employment discrimination: Evans v.Mcclain of Georgia, Inc. However, a company operating without such evaluationprocedures leaves itself open to legal challenges that promotions anddismissals are subjective and discriminatory (Weiss, 1991, p. Ultimately, neither employee was ever promoted (Hewitt,1999, p. 1 -7). Courts havefound that a critical evaluation of an employee's job performance does notconstitute the infliction of emotional distress as long as the criticism isnot extreme and outrageous, not intentionally reckless, and not intended tocause emotional distress (Weiss, 1991, p. A regularly scheduled employee performanceevaluation can easily provide the company with this necessarydocumentation. Generally, the law comes into play only after circumstances wheresomeone with business authority ignores sound management advice. & Dobbins, G. L. Rather, itis far more common for problems to arise because of ignorance of the law(Weiss, 1991, p. Weiler, P. (Weiss, 1991, 11 ) Thebetter course is to maintain routine documentation on each employee in anon-discriminatory manner. Lawyers and Legal Institutions in theLegal Process. 93). But, each employer and companyshould carefully craft their own evaluation systems that will be customizedto the industry and employees. In theevaluation of Hopkins' candidacy for partner, many of the participants inthe selection process made sexist comments relating to gender expectationsin the business environment. In this case, the employee alleged that he was fired for actingwithin protected public policy. A dismissed employee may bringa lawsuit even though the employer had good cause to fire the employee.The dismissed employee's potential lawsuit can be considerably weakened ifthe employer can show in the employee's personnel file that the employeeknew about the problems leading up to the dismissal and failed to takecorrective guidance from the employer's evaluation reviews (Steingold,1997, p. Properperformance planning and evaluation can systematically improve productionand increase the confidence of a company's workforce, which can ultimatelycreate a better working environment that avoids or reduces the possibilityof personnel problems and unnecessary court battles. K. But, it is important toroutinely update the files with regularly scheduled employee reviews and totreat all employees equally when conducting the evaluations. 3). Other cases involve employerswho acted with some intentional ill will against the terminated worker.These cases can be helpful in offering guidance to employers by pointingout behaviors and activities that should be avoided. New York: McGraw-Hill. It is an on-going process that should develop a clear understanding of the job, goodcommunication about progress, and a review of the results (King, 1984, p.ix). H. K. A well-planned and organized employee performance evaluation form canhelp an organization avoid litigation if an employee should later be passedover for a promotion or terminated. The court concluded that the firing was aviolation of the Age Discrimination in Employment Act. 1). 19). The critical nature ofa negative evaluation can be alleviated through open communication, and byallowing the employee to have a voice in the process. However, the company's management later decided to reduceboth of the men's salaries by 25 percent and took away their supervisoryauthority. Protection for the employee against anunfair firing and protection for the employer against unnecessarylitigation means more than incorporating a few evaluation forms. Routine evaluations can be usedas a part of an employee's personnel file. New York:AMACOM American Management Association. Thereafter, the policies need to be communicated to theemployees to avoid the appearance of subjective and discriminatory decision-making. Such subjectiveinterpretations can lead to allegations of discrimination by the company.The evaluation system must incorporate obvious and direct measures thatattempt to avoid subjective decision-making, disparate treatment anddiscrimination (Weiss, 1991, p. (1983). Weiss, D. Having a policy manual is simply the first step. Finally, the rules must be followed carefully, so as to avoidapplying the policies differently among different people (Weiss, 1991, p.89). Private litigation has been an influential vehicle to sociologicalreform in the area of employee performance and evaluation (Weiler, 199 , p.79). The company had a clear expectation of different behaviorbetween male and female prospective partners. In the case of Hopkins v. 59). New York: Academic Press,Inc. 2-2 ). Businesses and organizations need to have the means tomonitor employees to ensure that the needed work is being productively andefficiently completed in order for the business to stay competitive in themarketplace. 19). (1975). The employees should have a clear understanding of the company'sexpectations and be offered advice on how to do their jobs and improvetheir performance. The performanceevaluation forms and procedures can be developed to minimize thepossibility of dismissing an employee for the wrong reason, and can helpprotect the employer when discharging a worker for legitimate businessreasons. Cambridge, MA: Harvard University Press. In mostcases, managers do not usually intentionally violate the law. The court decided the case in favor of the fired employee. Thatdocumentation proved to be invaluable to the company in its defense of thelawsuit, but the company was still faced with the heavy burden of its legalcosts. Further, the company will incur more human capital costs byhaving to bring in a new employee and train that person to do the same job(Weiler, 199 , p. Clearly written job-related standards that are communicatedto the employee at the beginning of the rating period should be the onlybasis by which the employee's performance is measured. (1984). Dominick, B. The systems and forms not only produce thestandards for employee performance, but also set into place mechanisms foremployers to defend themselves from employee workplace litigation. One evaluator suggested that Hopkins neededto attend charm school. The employer's legal handbook. What is the definition of "public policy"wrongful discharge?: Time for Idaho courts to provide guidance byinterpreting the wrongful discharge cause of action. L. 5). Whether or not the company had intended to violate the law, it did do soand ended up paying the price for that mistaken action in litigationdefense costs. Kellogg, M. Goodpersonnel policies need to show a commitment to treating all employeesaccording to established standards of fairness. Despite of the prevailing culture of business forms, it is importantto remember that performance appraisal is not about forms. & Farr, J. Performance evaluations are a critically important management toolbecause they provide information that is essential to the four keymanagement functions of planning, organizing, directing and controlling theoperations of the business enterprise (Cardy & Dobbins, 1994, p. Performance planning & appraisal: A how-to bookfor managers. The employer likely will have made efforts to train and developthe employee's skills, and that investment is lost if the employee leavesthe company. King, P. Your rights in the workplace. Written job descriptions and performance standards that spell out theduties and responsibilities of the employees are essential for measuringsuccessful work groups and individuals. The older manager wasreplaced by a younger man who had a salary that was considerably less thanthe salary of the older manager. xiv). (1997), an employee,Evans, was in line for the next available management position at theindustrial plant, but he had a reputation at the plant for beingintimidating. The job description drives theappraisal process. (1996). LEGAL ASPECTS OF PERFORMANCE EVALUATIONS Employee work performance evaluation can be defined as the process ofidentifying, observing, measuring and developing human performance inbusinesses and organizations. 68). (1999). J. Human resourceperformance evaluation forms are then created based on the criteria andrelevant characteristics that need to be reviewed and monitored within anorganization. Thesuccess of an organizations human resources program depends on thedevelopment of a program of guidance, discipline, personnel documentation,record-keeping and communication that fits the company (Weiler, 199 , p.75). S. (1994.) Performance appraisal:Alternative perspectives. Evaluation forms and lists ofelements that should be incorporated into evaluation forms are widelyavailable in human resources literature. Courtroom challenges have also shown that it is illegal to build afile on an employee after the employee has filed a complaint or after adecision to take corrective action has been made. In the business setting, performance information is collected for thepurposes of administration, research, guidance and counseling (Landy &Farr, 1983, p. Berkeley,California: Nolo Press. 94). Thecourts have been flooded with work-related cases alleging wrongfuldischarge and illegal discrimination, many of which may have been preventedor alleviated by the proper use of job descriptions and employeeperformance evaluations. When conducted in due course, the action of documenting anemployee's activities will then not be interpreted as subjectivelyharassing any individual employee. 43). Ill-planned performance measures leave it open forthe immediate supervisors to fill in the blanks and make subjectiveinterpretations about the actions under review. The evaluation forms and procedures need elements to ensure that theorganization hires, trains and promotes people without regard to race,color, creed, national origin, religion, age, sex or disability (Weiss,1991, p. (1987), a manager who hadworked for Transit Mix for 27 years was fired. But, a subjectively applied evaluationor a disorganized evaluation procedure can lead to heavy legal costs. (1999). ByronScott and Al Johnson brought a lawsuit for wrongful demotion. A non-performingemployee will need to be replaced by one that will do the necessary job.(Weiler, 199 , p. It is important that the evaluation system be carefully planned andhave standards that are applied equally to all employees within the samejob classifications. The company's disciplinepolicies allowed for performance reviews, warnings and corrective action.Had the company followed its own personnel guidelines, the lawsuit wouldhave been substantially reduced in its credibility. The company's position was that the two men violated companypolicies by operating the side consulting business (Repa, 1996, p. 28 Stetson LawReview 929, 2, 4. Any employee discipline that could affect anissue of public policy must be carefully considered, and the disciplinemust not be in retaliation for the employee acting within some properpublic policy scope (Dominick, 1999, p. Transit Mix, Inc. REFERENCES Cardy, R. 17). On their owntime outside of the company, but while still actively employed by thecompany, the two men started a consulting business that operated for 12years. Evaluation reviews shouldbe even-handed and thorough, but not so stringent that managers will not beable to follow through on the policies (Walsh, 1994, p. If this potential problem had been recognized in the evaluationprocess, the anxiety, hardship and expense experienced by the company andthe fired employee likely could have been averted. The need for organizations to formulate standards to measureperformance has produce a corporate culture of employee evaluationprocesses and employee appraisal forms. The measurement of workperformance: Methods, theory and applications. [Online]http://www.uniserve.edu.au/law/pub/teaching_material/citizen/LawyersandLegalInstitutions.html Repa, B. Cincinnati, Ohio: College Division South-WesternPublishing Co. Even where the reasons for denying promotions or terminating anemployee are legal and legitimate, an employer can get into legal troubleif an employee is dissatisfied or angered. 98). 29). It will also contribute toward a moreaccurate employee performance evaluation (Walsh, 1994, p. Landy, F. For example, it would be in the best interest of the employer andthe organization to dismiss an employee who is not meeting the minimumstandard of performance for the task at hand. But, if an evaluation is undertaken by thecompany, the company could bring on a contractual obligation to conductsuch an evaluation. Another evaluator, although a supporter ofHopkins' bid for partnership, advised that she should talk and dress morefemininely. K. Hewitt, S. (1997). Some cases show that the firing may have beenfor a legitimate business reason, but the handling of the situation leftthe company open to some adverse liability. The younger manager had more recent and fresheducation that could benefit the company's operations. 36). 35 Idaho Law Review285, 25, 43. Feedback and communication are ongoing processes.The written evaluation form used at the end of the year should be aculmination of the feedback the employee received throughout the entireyear (Steingold, 1997, p. 1 -7). Walsh, J. In the case of Metz v. Steingold, F. Itbelieved that the company was unjustified in firing the salesman andwrongfully tried to keep the commission money for itself. Most employers do not want to fire people, especially where theorganization will immediately lose its substantial investment in humancapital. In the case of Smith v. The historic case of Fortune v. 4). In deciding infavor of the fired employee, the court recognized that the older employeehad dedicated a great portion of his life to the company and hadconsistently received regular salary increases and promotions inrecognition of his good work (Weiler, 199 , p. McClain of Georgia Inc. 25). Employers need to have the freedom to dismiss employees for goodreasons. Although this may have beena realistic expectation under certain circumstances, the evaluatorsincorrectly used the expectations of gender-related behavior to deny her apartnership bid (Moles, 1999, p. The identification element of an employeeperformance evaluation is the process of determining what areas need to bestudied by the evaluators (Cardy & Dobbins, 1994, p. The court statedthat the company had violated its implied obligation of good faith and fairdealing because it had tried to deny the employee his rightful commissionthat was earned based on his earlier work and productive efforts. Ultimately, thecourt found in favor of the school district and held that there had been noviolation of public policy committed by the school district in choosing notto renew the employee's work contract (Dominick, 1999, p. 131 F.3d 957 (11th Cir. H. There are, however, many cases where the employers improperly firedor terminated an employee. In the case of Evans v. If the employee is performing well, then some measure needsto recognize that performance and distribute a proper reward. S. The employeeclaimed that the dismissal violated public policy and that the dismissalwas connected to a report the employee made about evidence of child abuse,although that report was required by state law. (1995), C. Berkeley,California: Nolo Press. The school district wasdragged into court to defend its termination of Smith. A properly applied performance evaluation may have identified this asa potential trouble spot and could have prevented this problem fromoccurring. Although thecase was decided based on procedural aspects of the law, the company wasleft to defend its actions using its personnel files and history ofemployee evaluations to dispute the claims of the fired employee. (199 ). Governing the workplace: The future of laborand employment law. 59) The subjective problem arises in the modernexpectation that employees are no longer necessarily "at-will" employees,but instead hold an expectation that they can retain their positions unlessthey do something wrong. Pacific Gas & Electric Co. 2-26). Evans sued the company alleging that he was harassed, pushed toresign, denied promotions and eventually terminated because of his race.The company defended the case by claiming that Evans disrupted theworkforce, created racial tensions, threatened white employees andnegligently performed his job duties (Hewitt, 1999, p. Performance is difficult to accurately measure, and it has been one ofthe most vexing problems that continue to plague human resource managers(Landy & Farr, 1983, p.3). (1999). Available: UniServe Law, Department of Employment,Education and Training, Australian National University. Santa Monica, California:Merritt Publishing. Wrongful termination. The court decided in favor of the two men, holding that the companyhad set into place a detailed list of discipline steps in the company'swritten personnel guidelines and that these guidelines were not fairlyapplied to the two men (Repa, 1996, p.
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