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.

Protecting The Health of Your Practice: A Note From An HR (Juris) Doctor

I am an attorney. That said, the thought of putting together a will or providing advice on the impact of a bankruptcy strikes fear in my heart. I know just enough about those areas of law to be dangerous. The area of expertise on which I focus is employment law. When a friend or client asks me for guidance outside of my practice area, I tell them they are asking a foot doctor to practice brain surgery and refer them to an appropriate specialist.

Over the years, I have had a surprisingly high number of law firms and solo practitioners as clients. Unfortunately, every one of them has come to me after an issue has arisen. Each has been focused on practicing law. Along the way, though, they have forgotten that they are also managing a business and, consequently, employees. Perhaps they have just enough knowledge of employment law to be dangerous or, perhaps, the issues never occurred to them. Each made mistakes that could have been avoided with a little preventive care.

● Wage and Hour Laws. The most prevalent mistake my law firm-clients have made is no different from the mistake many employers make; they did not consider the implications of wage and hour laws on their business. Too many are paying a paralegal and/or an office administrator a “salary” and presuming that this covers any overtime pay requirements. This mistake has the potential to sneak up on them in one of two painful ways. Either the employee becomes disgruntled and sues, or, on a more frequent basis, the Department of Labor & Industries conducts an audit. The Department then demands fines and back payment of all the taxes that should have been paying into the system all those years. Then the auditor usually refers the matter to his counterpart at the Department of Revenue where this agonizing process starts all over again.

● Employment Contracts. The number of law firms that have “employment contracts” with associates continually surprises me. An employment contract is no different from any other contract; there are financial repercussions if it is breached. But in the employment arena, an employment contract is rarely necessary and, if not thought out thoroughly, can cost the firm both financially and emotionally. An employment relationship can generally be governed at the employer’s discretion. But if there is a contract, it takes on the characteristics of a business relationship and the employer has signed away a host of rights. Granted, there are occasions when a contract is to the benefit of both parties. I worked for a number of years at a general practice firm and, on occasion, a corporate lawyer negotiating a deal would think to have one of us in the employment law department review the executives’ contracts. There was always astonishment at the number of revisions we made. With our different practice focus comes knowledge of a variety of potential prognoses that should be considered.

● Handbook and Performance Reviews. Once a lawyer-client told me that he thought he should avoid documentation whenever possible. Documentation is, however, the best friend of anyone handling HR issues. Just like having a contract at the outset of a partnership gives all of the parties notice of the expectations of that relationship, a well‑formed handbook notifies employees of their employer’s expectations. Well‑written performance reviews are notice of whether the employee is meeting those expectations at various points along the way. Further, documentation is proof: proof of performance issues, proof of communication, proof of the relationship and its struggles and triumphs.

These are some of the most prevalent HR gaffes I have seen when working with small employers. There are others but most, if not all, are avoidable. Most can be resolved with minimal pain via consultation with an employment law practitioner. The good news is that a little preventive care can protect what you are working so hard to accomplish: a strong and healthy business.

New Year's Resolution Time!

It’s that time of year, time to make your New Year’s resolutions. When you’re looking at the needs of your business and your clients’ businesses, do not forget the importance of respect and professionalism training for your staff and your managers.

Companies that incorporate a consistent diversity training program and advocate diversity in the workplace experience valuable benefits such as:

♦ Higher employee retention rates,

♦ Improved employee (individual and team) performance and morale,

♦ Reduced harassment incidences, charges, and discrimination lawsuits, and

♦ Improved workplace staffing (diversity recruitment).

Add respect and professionalism and performance management training to the top of your New Year’s resolution list!

Respect & Professionalism

Last night, I completed training for a Pacific Northwest client with approximately 200 employees. This endeavor included 12 sessions of Respect and Professionalism training (including 4 in Spanish with the help of an interpreter) and 5 sessions of manager training on Maintaining a Workplace Free of Discrimination, Harassment & Retaliation as well as Performance Management Training.

In conjunction with these training sessions, I am assisting the client in revising the Company handbook and policies. It was a pleasure for me to get to work so closely with this client while they tackle some of the big issues facing their workforce.