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Common Sense Suggestions for handbooks, evaluating performance and complying with HR regulations

Practical Manager Training for recruiting, coaching and developing top performers

Wednesday, June 4, 2014

When HR & The Supreme Court Are At Odds, What’s an Employer Supposed to Do?

Several human resources departments are instituting a radical idea. They’ve abolished all written performance documentation including performance reviews. Written documentation during manager/employee meetings is often out. Rating of individuals for compensation purposes is also abolished as is ranking of performers in a growing number of companies.

The desire to get rid of performance feedback in a documented fashion is in response to employee dislike of hearing feedback on only a yearly basis coupled with manager dislike of writing what are seen as valueless annual reviews.

In stark contrast to the jettisoning of traditional performance documentation, the legal world warns that managers act at their peril unless they maintain detailed personnel files on employees. Lawyers warn managers to rank employees and keep documents of performance so they can defend against wrongful termination, public policy and discrimination claims.

The necessity for documentation of performance as well as ranking was just reaffirmed in a US Supreme Court case called Lawson V. FRM, LLC. In the Lawson case the Supreme Court held for the first time that private employers can be held to federal whistleblower liability.

Courts and agencies require substantial documentation of terminations of whistleblowers. Without performance evaluations and ranking of performers everything devolves into ”he said/she said” proceedings.  Such contests are usually resolved against the employer.

I suggest there is a vast middle ground that answers many of these concerns. The middle ground is to train, train, train managers to give both positive and negative feedback as a matter of daily business. The middle ground approach is much more acceptable to employees and it is easier on managers.

This kind of exchange can be documented easily in notations in calendars, text messages, emails, customer meeting agendas, and project updates. Training managers to structure regular documented one-on-one sessions with regular written agendas can also be a terrific source of evidence of ongoing performance feedback.

Managers also need to be trained to identify who are top performers and who are poor performers. No matter how much these practices are repugnant to some HR professionals, managers, and employees these comparisons are necessary to justify why the whistleblower was terminated and others were retained. As a side benefit focusing development efforts on those ranked at the top helps to retain key employees.

HR Results provides two customizable courses designed to help managers bridge the gap between conflicting advice from legal and HR:

Coaching 101
Strategic Management 101

For more information, contact Judy Pearce at HR Results today.