Employee Evaluations Can Have Legal Consequences

If you have a business, and that business has employees, you may already be giving those employees performance evaluations. But like anything else, there are legal pitfalls to doing such evaluations, if they aren’t done correctly.

Protection from Harassment Allegations

That’s not to say that they shouldn’t be done. Aside from the business benefits, which include motivating employees, and communicating to them the strengths and weaknesses of their performance, employee evaluations can provide to you another benefit: to some extent, protection from employment law related lawsuits, particularly, involving harassment or discrimination.

If you did have to fire (or demote, or do anything negative towards) an under-performing employee, and that employee were to allege discrimination of any kind, you would have the employee’s evaluation, as proof that there are legitimate, neutral, and non-discriminatory reasons, why the employee was disciplined or fired.

So, it isn’t that you shouldn’t do employee evaluations—you can, and should. It’s more that you should be aware of legal problems that can arise from doing them, so you can (with your business law attorney) try to avoid these problems.

Be Careful With Negative Evaluations

Giving an employee a negative evaluation is seen as an adverse employment action. If the employee is of a protected class, for example, due to gender, age, disability, race, nationality or age, among others, that employee could use the negative evaluation as evidence of discrimination against him or her.

That doesn’t mean you can’t ever say anything negative (otherwise what’s the point of evaluations in the first place), it’s more that you should be fair and equal among all your employees—if one employee gets a negative comment about a specific behavior or action or lack thereof, every employee who does the same thing, should be marked in the same way in or at the evaluation.

Uniformity and Objectivity

You can avoid discrimination by having uniformity in your evaluations. The less subjectivity and the more objectivity there is in evaluations, the safer you will be from claims of discrimination. Forms and documents, where supervisors or those who are doing the evaluations, can just check off boxes, are very helpful.

If you are going to write evaluations free-form, evaluators should be trained to write in tangible, objective terms. For example, saying an employee is “routinely late for work,” would be fine—but saying an employee is “not always motivated,” or “doesn’t care about her job,” are vague, ambiguous terms that have no objective meaning, and thus, which may open you up to lawsuits.

Retaliation Allegations

Negative evaluations can also be seen as retaliation. Be very careful when an evaluation is within close proximity to an employee making a complaint, or doing anything that could lead the employee saying that a negative evaluation is retaliation for something the employee did.

It may behoove you to postpone an evaluation if it is close to a time when an employee, for example, complains about harassment, or files for bankruptcy, or makes a workers compensation claim, or asks about why he or she wasn’t paid overtime.

Your day to day business decisions can carry legal consequences. Call our Fort Lauderdale business and commercial litigation lawyers at Sweeney Law P.A. at 954-440-3993 for help.