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5 Performance Management Scenarios: Navigating Everyday Encounters for Greater Results — Q&A Session

In our post-webinar Q&A Session, Jaime Lizotte, HR Solutions Manager, answers your questions on how to navigate performance management scenarios.​

Watch this free HR webinar on demand.​​​


What can an HR director do with a supervisor who hands in performance reviews that come in with all perfect scores, even though you know the employee is not a perfect employee?

Well, one of the things I have always complained about is supervisors who do poor performance evaluation. Doing that should actually show up on the supervisor’s performance evaluation. And if you’re not the one doing that performance evaluation for that supervisor, then you know you need to go to that supervisor’s manager and explain to them, that this employee is not doing what they’re supposed to be doing.

It’s obvious they’re just filling out forms and they are making a mockery of the process, and then tell that manager that the person’s use of the performance evaluation should show up on their performance evaluation as well. There has to be consequences for not doing the process appropriately. And yo​u’re just going to have to work with your management team and determine what those appropriate processes are and what those consequences are.

Do you recommend that employees do self-evaluation each year?

I have always been a fan of self-evaluations. I know some people hate them, and some of the employees who have to fill them out hate them because they know that the supervisor they have is not going to listen to them and not going to pay attention to them. If indeed you’re one of those supervisors who doesn’t really pay attention to what they say, then that person filling that form out has no meaning. Then, in that case I would recommend that they not do it.

I always liked it with my employees because I found that it was a conversation starter, and sometimes I found something out from them about what they said that I was not aware of and so it really helped me re-evaluate what I was doing. You also can discover whether somebody has an inflated opinion of themselves and at that point you know you need to work on bringing them down to reality. But I think it’s a good idea and it works well as a conversation starter for that evaluation; remember, I said these need to become conversations and so use something to get them started.

Do you recommend using a separation agreement with each termination or just a termination letter?

That’s one of those situations where it just depends. If you’ve got somebody you’ve got a lot of nondisclosure agreements with, or you’ve got somebody that has the potential for impacting your organization, or you feel they are going to potentially threaten your organization with a lawsuit, then certainly a separation agreement where they promise not to do that in return for a severance is a good thing to do.

In other cases, where you don’t fear any of that stuff, a termination letter is appropriate, and sometimes you have a good employee who’s leaving for a better opportunity, and they do not threaten the organization at all. But if you feel that somebody has that potential for suing you, then you certainly want to get them to sign a term of separation agreement.

When there are attendance policy violations do you recommend suspending before termination or does that defeat the purpose?

Again, that’s one of those where it depends. You’re going to have to do a read on the particular individual. In some cases, it is appropriate to go right to termination. In other cases, if you feel that the person is just not really awakened to things or they might, then in that particular case, you may want to do a suspension, but you’re right, suspending somebody who doesn’t want to be at work is just giving them another vacation, so if that’s the way you feel about them, then that suspension may not be appropriate.

We are small, less than 10 employees and we have issues where we tend to layoff to avoid the hassles of termination procedures. How risky is that from a legal standpoint?

Well, it is indeed risky. Layoff is a term that comes from a lot of union activity that implies that there is a potential call back: that there is an opportunity to come back and get their job back, and if you’re not providing that, then don’t use the term layoff.

If you’re terminating somebody, be honest with them why you are terminating them. Going into the hassles of the termination procedure does not have to be that complicated, but certainly saying to somebody you’re terminating them because of their performance and you have documentation of that poor performance, then you want to go ahead and say that’s what we are terminating you for; because what happens is, under unemployment law you laid them off and now they’re going to say in reality they fired me and the unemployment office comes back to you and says now the employee was laid off, and you say really, they were terminated. You’re already caught in a lie, so why do you want to start lying to the government when in reality you’re letting these people go, so be honest with them. You’re going to be better for it; they’re going to be better for it, and quit using that term layoff, when indeed there’s no opportunity for them to come back to work.

If an employee disagrees with a candid assessment, with management examples, and requests to include a counter-statement of explanation, is this acceptable?

In my opinion, it is a company procedure thing that I’ve seen that works for some companies and not for other companies. I personally don’t. If you set it up correctly and you allow them to have access or there is room on your form for them to make a comment, then certainly I would allow them to make that comment, and if indeed they are bringing up stuff in their explanation that is not verified by the documentation that you had in preparation for that assessment, then you maybe need to rethink your assessment; maybe they are bringing up stuff that is cogent to the argument that they should not have been evaluated that way. If they just want to put down that everybody is a jerk and nobody likes me, and they’re doing the conspiracy stuff, at least you allowed them the opportunity to make that comment. It might make them feel better; but in reality it has no basis or bearing on the actual performance review you give them.

Can you keep documentation in the employee’s personnel file or should you keep it separate?

Yes, you should keep it in their personnel file. An employee’s personnel file consists of performance reviews, and their job responsibilities, etc. So this is where you should keep those notes you jot down of the situations or instances that you come across, so you remember them when you bring out their folder for review. However, what you should keep separate is anything of sensitive info, like their I-9 or medical records, etc.

When you are having a termination meeting, is there anything wrong with offering the option of resignation in lieu of termination?

Just as I mentioned in the webinar earlier, the answer is no, but it really depends on the employee and situation. This would be a company decision to make. But you also want to make sure your treatment is consistent among employees for similar situations — to avoid any possible legal issues or discrimination claims later on.​

Ashley Kaplan, Esq.
Presented by: Ashley Kaplan, Esq.,
Senior Employment Law Attorney
A record number of state and local employment laws were passed in 2018, and many more are pending. With each new law that passes, employers must struggle to understand and comply with ever-increasing obligations.

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