Many of us send and receive recommendations on social media sites, such as LinkedIn, from co-workers, vendors, and clients about our work performance or services. Recently, employers have realized that these may be inconsistent with the employer’s policies on neutral references. Worse yet, these recommentdation may even be providing false or fraudulent information. Employers need to take a hard look at their employees’ recommendations on social media.
Employers have long realized that providing negative references for former employees can create liability for defamation. As for positive references, a number of courts have found employers liable who provided false positive references for former employees that employers knew had committed crimes or engaged in other misconduct. As a result, many employers today simply provide neutral references for all former employees (name, former job title, salary, and dates of employment) and they have implemented policies requiring their employees not to make recommendations at all.
Unsanctioned recommendations appearing on social media sites, therefore, can cause complications for employers. Take, for instance, an ill-timed positive reference published by a manager on a social media site extolling his former employee’s honesty while, unbeknownst to the manager, the employer was contemplating litigation against the former employee for taking trade secrets or other confidential business information as he was leaving.
To avoid these and other similar issues, employers should consider taking several steps. Most importantly, employers should amend their written social media or reference policies to address unauthorized employee recommendations and references on social media sites. Depending upon the circumstances, barring employees from making such references may be appropriate. However, this is not always practical or prudent for employers who are encouraging employees to promote their businesses through social media. Under these circumstances then an employer may require instead that employees request authorization from their human resources department or a designated individual such as the Controller or CFO before making references or recommendations.
Simply amending social media and references policies and procedures, however, may be insufficient. Employers need to be vigilant and proactive. Appointing suitable personnel and, if possible, a social media manager to monitor public social media sites to ensure that employees are not violating critical policies is another measure employers should consider. Of course, this must be done in a manner that respects the off-duty rights and protected concerted activities of the employee. See March and November 2011 posts regarding Facebook & the NLRB.
Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.
Showing posts with label Performance Management. Show all posts
Showing posts with label Performance Management. Show all posts
Thursday, November 10, 2011
Wednesday, May 11, 2011
What Not To Do In A Performance Review: The Rules
I “coffee shop” commute from time to time. This morning, I had the unfortunate opportunity to overhear a disciplinary discussion at a table less than 2 feet from me. I could not not listen. At first I just thought it rude that the manager didn’t give her junior an opportunity to get a latte first since she herself was drinking one. But as the conversation went on, I became more and more appalled by what I was hearing. I listened to a manager chew out an employee in a public place, with emphatic hand gestures and all, for close to an hour. So, instead of working on a project at hand, I thought it an opportune moment to blog on what I call The Rules of how not to have a disciplinary discussion.
Rule #1. First among my guidance to clients on performance and disciplinary conversations is to do it in a non-public place where the conversation will be undisturbed and the recipient will not be embarrassed by the lack of privacy. Seems like common sense to me but here I am listening to this conversation so clearly it’s not. Additionally, these two I am hearing must work for a nearby business so the odds of a co-worker coming in and seeing this are high.
Rule #2. STEEL yourself. This applies to planned and unplanned performance management conversations. STEEL stands for: Specific, Timely, Explain, Empathy and Listen.
Your discussion should include specific exmaples of objective facts, not just conclusions. Telling an employee that you do not like their attitude is not nearly as effective as telling them that you consider a particular comment or action to be unprofessional. Additionally, focus your comments on performance or conduct, not the person.
Have this conversation in a timely manner. Addressing performance issues quickly, both good and bad, has the most potential to correct or encourage a situation. I once won a major summary judgment for a client. The client was ecstatic and sent me flowers and a gift card. My supervising attorney said nothing… until performance review time three months later. It was listed among my accomplishments for the year. His office was right next to mine. He knew about the win and saw the flowers. What would it have hurt if he had stuck his head into my office and said, “Congratulations. Great job.” Instead, a decade later, the issue still sticks in my craw.
Next, be certain to explain to the employee your specific expectations. Vague statements like, “You need to improve your sales” are not as powerful as “I want to see you get these numbers up by 10 percent this quarter.” Have a positive plan formulated, including corrective action to enhance performance.
Have some empathy. Remember that the person you are speeaking with is, hopefully, trying to meet your expectations. Don’t paint them into a corner by telling them their performance in the worst you’ve seen in 15 years.
And, finally, listen. The truth is that people often have legitimate explanations for the reason they are doing what they’re doing. Sometimes, their reason may even trump your discipline. Given an opportunity, in a performance discussion about attendance, an employee with a disability will reveal their situation. This is a good thing. You need to take that fact into consideration. An employee who leaves the warehouse floor may have done so because he had been made aware of a potential safety hazard in the backroom. Again, this is the kind of employee who needs to be heard, not simply disciplined.
Rule #3. In a planned evaluation discussion, I advise preparing a written evaluation in advance of the conversation. Provide the employee with a copy. Select a time (and a place!) where you will not be interrupted. Ensure that not all of your evaluations are the same! If every employee receives an evaluation of “exceeding expectations” then that rating obviously carries no weight. Finally, if you anticipate any problems with how the discussion will transpire, review the issues is advance with your Human Resources professional.
Rule #4. Avoid the Halo Effect. Do not let your positive feedback in one area of performance effect your evaluation of another area. The salesperson with high production but rotten interpersonal skills still needs to be advised on improving her people skills. Expect the whole package from your employees in every evaluation and tell them you do.
Rule #5. Avoid the Horn Effect. Do not let your negative opinion of one area impact your review of the other areas of performance. An employee with great leadership skills and a notable devotion to their work should have that acknowledged and not hear only about their marketing failures.
Rule #6. Don’t let the employee’s length of performance impact their evaluation. Just because they have been an employee for ten years and have “always done it this way” does not mean it is something that should be tolerated. Likewise, if an employee is a new employee, do not let issues go unaddressed until the next review. By then, the employee will only have built up another year of bad habits.
Rule #7. Anticipate responses to your evaluation. Why am I just hearing about this now? Amy got a second chance, why not me? Is this because I complained? Can I appeal this? Is my job on the line? These are all legitimate questions. Think through the answers in advance of the conversation. And if you do not know the answer, talk to your HR professional. In particular, prepare yourself for the comparator question: what about Amy? In the conversation this morning, the manager told the employee that another employee was not going to be written up for her conduct. I’d have advised her to instead tell the employee that Amy’s situation is separate from her own and that she was not there to discuss Amy’s performance with her.
These are basics. When I provide performance management training, I go into more detail and provide more examples. It’s important to remember that performance reviews are emotional, especially when they are negative. This makes them fodder for lawsuits. A poorly handled disciplinary discussion (in, for example, a local coffee shop) is humiliating. Juries do not like it when employees are humiliated, whether their performance is up to par or not.
Rule #1. First among my guidance to clients on performance and disciplinary conversations is to do it in a non-public place where the conversation will be undisturbed and the recipient will not be embarrassed by the lack of privacy. Seems like common sense to me but here I am listening to this conversation so clearly it’s not. Additionally, these two I am hearing must work for a nearby business so the odds of a co-worker coming in and seeing this are high.
Rule #2. STEEL yourself. This applies to planned and unplanned performance management conversations. STEEL stands for: Specific, Timely, Explain, Empathy and Listen.
Your discussion should include specific exmaples of objective facts, not just conclusions. Telling an employee that you do not like their attitude is not nearly as effective as telling them that you consider a particular comment or action to be unprofessional. Additionally, focus your comments on performance or conduct, not the person.
Have this conversation in a timely manner. Addressing performance issues quickly, both good and bad, has the most potential to correct or encourage a situation. I once won a major summary judgment for a client. The client was ecstatic and sent me flowers and a gift card. My supervising attorney said nothing… until performance review time three months later. It was listed among my accomplishments for the year. His office was right next to mine. He knew about the win and saw the flowers. What would it have hurt if he had stuck his head into my office and said, “Congratulations. Great job.” Instead, a decade later, the issue still sticks in my craw.
Next, be certain to explain to the employee your specific expectations. Vague statements like, “You need to improve your sales” are not as powerful as “I want to see you get these numbers up by 10 percent this quarter.” Have a positive plan formulated, including corrective action to enhance performance.
Have some empathy. Remember that the person you are speeaking with is, hopefully, trying to meet your expectations. Don’t paint them into a corner by telling them their performance in the worst you’ve seen in 15 years.
And, finally, listen. The truth is that people often have legitimate explanations for the reason they are doing what they’re doing. Sometimes, their reason may even trump your discipline. Given an opportunity, in a performance discussion about attendance, an employee with a disability will reveal their situation. This is a good thing. You need to take that fact into consideration. An employee who leaves the warehouse floor may have done so because he had been made aware of a potential safety hazard in the backroom. Again, this is the kind of employee who needs to be heard, not simply disciplined.
Rule #3. In a planned evaluation discussion, I advise preparing a written evaluation in advance of the conversation. Provide the employee with a copy. Select a time (and a place!) where you will not be interrupted. Ensure that not all of your evaluations are the same! If every employee receives an evaluation of “exceeding expectations” then that rating obviously carries no weight. Finally, if you anticipate any problems with how the discussion will transpire, review the issues is advance with your Human Resources professional.
Rule #4. Avoid the Halo Effect. Do not let your positive feedback in one area of performance effect your evaluation of another area. The salesperson with high production but rotten interpersonal skills still needs to be advised on improving her people skills. Expect the whole package from your employees in every evaluation and tell them you do.
Rule #5. Avoid the Horn Effect. Do not let your negative opinion of one area impact your review of the other areas of performance. An employee with great leadership skills and a notable devotion to their work should have that acknowledged and not hear only about their marketing failures.
Rule #6. Don’t let the employee’s length of performance impact their evaluation. Just because they have been an employee for ten years and have “always done it this way” does not mean it is something that should be tolerated. Likewise, if an employee is a new employee, do not let issues go unaddressed until the next review. By then, the employee will only have built up another year of bad habits.
Rule #7. Anticipate responses to your evaluation. Why am I just hearing about this now? Amy got a second chance, why not me? Is this because I complained? Can I appeal this? Is my job on the line? These are all legitimate questions. Think through the answers in advance of the conversation. And if you do not know the answer, talk to your HR professional. In particular, prepare yourself for the comparator question: what about Amy? In the conversation this morning, the manager told the employee that another employee was not going to be written up for her conduct. I’d have advised her to instead tell the employee that Amy’s situation is separate from her own and that she was not there to discuss Amy’s performance with her.
These are basics. When I provide performance management training, I go into more detail and provide more examples. It’s important to remember that performance reviews are emotional, especially when they are negative. This makes them fodder for lawsuits. A poorly handled disciplinary discussion (in, for example, a local coffee shop) is humiliating. Juries do not like it when employees are humiliated, whether their performance is up to par or not.
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