Performance Evaluation, Quirky Question # 6
Quirky Question # 6:
Our company operates a call center. One of our supervisors (Employee X) demonstrated two significant performance problems. First, he was verbally abusive to the employees he supervised. Second, he appeared to have a disproportionate number of “dropped” calls. Our suspicion is that he put the callers on “hold,” and left them on “hold” until they hung up and called back, at which point the calls would roll over to someone else. Since he was a long-term employee, we did not fire him. Instead, we provided him a probationary letter, demoted him, and increased our supervision of his performance. In the two months since we made these changes, he has performed quite well. Coincidentally, at the end of the two-month period, X’s annual performance evaluation occurred.
The person responsible for X’s review is one of his close friends, both at work and outside the workplace . He based his review of X’s performance on the last 60 days, which he justified to us as designed to “encourage” rather than “discourage” X. The review was very positive and ignored the problems that were exhibited through the vast majority of the review period (10 months of the year). The manager provided the review to X and had him sign it. When the manager who conducted the review asked his own supervisor to sign off on the review document, the crap hit the fan.
The senior manager insisted that we re-write the review, which we have done. The review now reflects the full year’s performance, including the serious problems that were identified before X was placed on probation and demoted. We provided the new review to X, informing him that the earlier document was not reflective of his entire year and would not be placed in his personnel file. I have the original review (there are no copies). Now, X is telling me he wants a copy of this review as it is his “legal right” since he signed it. Do I have to give him a copy of the first review?
Roy’s Analysis:
Your inquiry raises several issues in addition to the specific question you posed about whether your company is obligated to provide the employee the original performance review document.
First, as your question reflects, performance evaluations are difficult. While most would agree that the purpose of a performance evaluation is to provide candid, objective feedback regarding the employee’s performance in the time period encompassed by the review, this goal is more easily stated than achieved. Managers preparing performance evaluations struggle to find the appropriate balance between candor and criticism. Performance reviews often are either overwhelmingly enthusiastic or harshly condemnatory. Neither approach helps the employee being reviewed.
Second, a problem implicit in your question is the close personal relationship between the manager and the employee. Given this close friendship, I wonder whether the goal of an objective evaluation is realistic. Both as a general proposition and in this specific situation, your company may want to consider disqualifying an evaluator with a close personal relationship with the employee being evaluated. These types of relationships have the potential for distorting the evaluation, as appears to have happened here.
Third, situations where a close friend is evaluating a subordinate employee create an appearance (legitimate or not) of favoritism to other employees. If your firm does not have the flexibility to substitute another evaluator (I don’t have any sense of the size of your business), you might at least consider having a second person participate in the evaluation when close personal relationships are involved.
Fourth, as you noted, the review does not cover the entire performance period. Typically, I see the opposite problem. Individuals include in their assessments criticisms from a period long preceding the “review period.” Thus, an employee who believes that he or she has adequately addressed and resolved a prior performance problem continues to see criticisms based on that problem, perhaps from years earlier. Here, of course, you have a review based on just one-sixth of the year. This abbreviated period did not accurately reflect the employee’s year-long performance, which clearly was deficient for most of the year. An objective and fair review could have pointed out that the employee had exhibited serious problems throughout the year, but that since the demotion and with the additional supervision, his performance had improved significantly.
Fifth, the specific question you pose is preceded by your observation: “there are no copies.” Although I recognize that there may not be any identical, signed copies of the review, I am skeptical that there truly are no copies. The document probably was created on a computer and likely has been saved on a hard drive or network server. Drafts may have been retained. Photocopies may have been made. In our world of electronic data, it is hard to have confidence that all other copies have been destroyed.
Even if you had the only copy, however, my advice to you would not change. Give the employee a copy of the earlier review. I make that recommendation not because you necessarily have a legal obligation to do so, but because withholding the document is more problematic than producing it. Your company has a very straightforward and legitimate explanation for why the review was revised: it was prepared by a biased reviewer, who admitted that he based the assessment on just two months out of twelve, and who acknowledged that he ignored the other prior serious problems that had been identified (all of which had been documented and which led to the employee’s prior demotion).
Don’t run from these facts; they are helpful. If the employee in question later initiated litigation against the company, you will be able to explain easily why the evaluation was modified. It would be much harder for the company to explain why it refused to provide the employee a copy of the original review, or even worse, why the document had been destroyed. (Don’t destroy it!) In my opinion, refusing to provide the ill-conceived review elevates its significance. You might want to write “Withdrawn” or “Void” on the document before providing a copy to the employee, but even this step may be unnecessary.
Finally, like so much of employment law, there are two statutory schemes that affect the rights and responsibilities of employers and employees alike — federal and state. While I am not familiar with any federal requirement that you produce the document to the employee, you need to evaluate whether there are any statutes or regulations in your jurisdiction that require you to produce the signed document to the employee. As the reader who responded to this question pointed out, in California there apparently is such a requirement. You should check to determine whether there is a parallel provision in your state’s employment law statutes.
Readers’ Responses to QQ # 6:
Response # 1
At least in California, an employee has a right to copy any document she signed relating to employment. In this case, even if the company is no longer going to view the original review as “official”, because it was presented to and signed by employee X, under California law I would think X does have a right to a copy.
Sexual Harassment (Round 2), Quirky Question # 5
Quirky Question # 5:
I read your Quirky Question # 4. Unlike your last reader, I am not in our company’s Human Resources Department. But I am the attorney within our Office of the General Counsel with responsibility for addressing employment issues.
One of our HR representatives informed me that she had received a sexual harassment complaint by one of our employees. The complaint involved conduct by one of our company’s executives. Although the employee was apprehensive about making a complaint against this individual due to his stature within the company, she did so.
Unlike the fact pattern of your last Quirky Question, although the employee was uneasy about the company initiating an investigation, she did not advise our HR representative that she would address the problem herself. Rather, she clearly wanted HR to help and it did. The company conducted an investigation, which corroborated many of the employee’s complaints (dimwitted comments relating to sex, affectionate physical gestures, discussion of marital problems, odd interaction at after-work gatherings at a local watering hole, etc.). We took appropriate disciplinary steps to stop the behaviors that were troubling our employee, not to mention inconsistent with our Company’s harassment policy.
Lately, I have noticed that the complaining employee seems to be spending a lot of time with the Executive about whom she complained. She seems to be interacting frequently with him, both at work and, as far as I can tell, after work. I’m not sure what HR should do, what I should do, or whether the company needs to do anything at all. Got any advice?
Roy’s Analysis:
In my view, you need to figure out what’s going on between the two employees. For that reason, I would advocate more direct and proactive steps than described in the reader’s response displayed below. Especially since the interaction between the complaining employee and the executive ;has been sufficiently open for you to “notice,” an interview with the employee who brought the initial complaint is warranted.
I would want to know whether there has been any further harassing conduct. I would want to know whether their “relationship” has changed and whether the interaction between them is “welcome” to her. (Remember: the standard is not whether the conduct is “consensual” but instead, whether it is “welcomed.” In the very first harassment case that reached the US Supreme Court back in 1986, the nation’s high court made clear that sometimes “consensual” behavior is “unwelcome.”)
If the employee who brought the initial complaint advised you (or your designee) that she was not appreciative of the increased interaction with the Executive, I would make an effort to try to understand why it is occurring. Is she being pressured? Does she fear retaliatory conduct? To the extent she expresses either of those sentiments, I would seek to understand the factual basis for her beliefs.
If, however, she does not report those problems, your company may be insulated from potential liability, even if later problems occur between the two employees. Recall that in the companion Faragher/Ellerth cases the US Supreme Court decided in 1998, the Court created an affirmative defense for employers to certain types of sexual harassment claims. Among other facets of that decision, the Supreme Court stated that to prevail on a sexual harassment claim where the complaining employee has not suffered “tangible economic harm,” the employee must demonstrate that she availed herself of the company’s sexual harassment policy and took steps to “avoid harm otherwise.” That phrase has not seen a great deal of decisionmaking by the lower courts but there is at least one case that may be analogous.
In Brown vs. Perry, 184 F.3d 388 (4th Cir. 1999), the federal appellate court held that a female employee who went out drinking and dancing until the early morning hours with a supervisor, after which she had accompanied him to his hotel room, had failed to “avoid harm otherwise.” Her lawsuit was dismissed, in part because this was a person whom, she claimed, had sexually harassed her previously under very similar circumstances. In affirming the grant of summary judgment by the trial court, the Fourth Circuit concluded that it was inexcusable for her to accompany a person who previously had physically accosted her back to his hotel room at midnight after a night of drinking and dancing. Both the district and appellate courts had little sympathy for the victim when a similar incident occurred a second time under circumstances that mirrored the first situation leading to the initial complaint.
If your employee continues to interact with the Executive about whom she previously complained, especially in an affectionate or sexual way, your company may well have an argument that she failed to “avoid harm otherwise” in the event she initiates a lawsuit based on any harassing conduct following your investigation and resolution of her first complaint.
Sexual Harassment, Quirky Question # 4
I am an HR Representative. One of my duties is to take complaints regarding workplace discrimination, including sexual harassment. One of our female employees recently complained to me that she feels as though she is being sexually harassed by one of our top salesmen. (He is not her supervisor, but she does work on the team that supports sales after they have been made, so he could provide some feedback to her superiors on her performance.)
When she told me about the situation, she was somewhat vague. She also informed me that she will “handle it,” and does not want me to take any action on her behalf. She says that she simply wanted me to know “what’s going on.”
I’ve honored her request that have not done anything in the several weeks since she made her report. I’d like to know what’s really “going on” but I’m trying not to intrude. Do you have any guidance for me?
First, you work in Human Resources. This gives you a license to “intrude.” Indeed, you have an obligation to investigate when necessary. Here, it’s necessary.
Second, you cannot honor the employee’s request that you do nothing. Once you have notice of a potential problem, you need to take action. At a minimum, you need to investigate the situation by speaking directly with the complaining party. Your characterization that her complaint was “somewhat vague” is not good enough. You need to understand the behaviors that have led her to conclude she is being harassed. You may or may not agree with her that the conduct is offensive or problematic, but you need to find out what the conduct is. It’s possible that she will be perturbed that you have initiated an investigation. That’s her problem, not yours. You need to explain to her that the Company is obligated to investigate when alerted to a problem.
Third, you should make an effort to understand whether her reticence to have you take action is linked in any way to a fear of retaliation. Although you pointed out that the alleged harasser is not her supervisor, you also suggested that he could have some impact on the evaluation of her performance. One of your responsibilities will be to ensure that this does not occur.
Fourth, following your interview with the complainant, you need to interview the alleged harasser. He may corroborate the allegations, deny them, or provide you additional information that assists you to evaluate the legitimacy of the complaint. If he reacts adversely, you should remind him that your company does not tolerate retaliation of any kind, and that the company will monitor his conduct carefully to ensure that no retaliation occurs. There are various other components of an effective investigation that are beyond the scope of this response.
In general, when considering the “please don’t investigate” requests, consider the following scenario. Imagine that you receive a complaint accompanied by the request that you do nothing. Assume that you honor that request. Assume further that you hear nothing further about this situation, but that six months later, another employee complains to you about sexual harassment by the same individual.
You must look into this further, as the employee has really officially put you, as the company representative, on notice. What I suggest is that you let her know you must, as part of your job, find out more from her on this situation, as much detail as you can. You are not intruding. You can reassure her that your role is to strive for a harassment-free working environment. While you can tell her you will try to maintain her confidence as much as possible you simply cannot promise complete confidentiality as you never know which way these situations will go.
Response # 2: What do you do if the employee reports that she is being “harassed,” but then walks out and refuses to speak to you? Are you still obligated to conduct the investigation, when the employee is not cooperating?
How about an incident when they quit? Are you still on notice and must you do something? In my view, you should at least attempt to investigate and you should document your efforts.
However, what do you do about the practical challenge of conducting an investigation when the complainant is refusing to cooperate? In California, where I practice, there was a case against CBS, in which the complainant refused to cooperate with the investigation. The court allowed the company to use the complainant’s lack of cooperation as a defense to her later claim of harassment.
As an HR practice, however, there are risks associated with accepting an employee’s refusal to participate in a sexual harassment investigation. You should at least make an effort to obtain more facts from the complaining employee.
Employee Injury, Quirky Question # 3
Quirky Question # 3:
I was called out to our company’s parking lot (we run a manufacturing facility) during a break because of a report that an employee had been injured and was bleeding outside our building. Upon my arrival, I learned that the injured employee had created a homemade “shooting device” from a pipe, firecrackers, and ball bearings. He was planning to show off the device to co-workers by doing some “target practice” during his break. Unfortunately, he had the device turned backwards and he shot himself in the stomach.
How should our company respond to this situation? What are our primary risks?
Roy’s Analysis:
This fact pattern raises a number of questions.
One of the first inquiries you need to consider is whether the injury is going to be compensable as a workers’ compensation claim? We doubt that it would be. In Minnesota, for example, the workers’ compensation statute applies to injuries that are suffered “arising out of and in the course of employment.” It seems extremely unlikely that your employee’s actions in building a “shooting device” at home, bringing it to work, and then demonstrating it (however ineptly) to his co-workers during a break and outside of your facility could possibly be considered to be in the “course of his employment.” Nevertheless, you should investigate and document your investigation to ensure that you are well prepared to address any workers’ compensation issues in the event they are raised.
A second inquiry is whether you should take any action against the genius employee who invented the “shooting device?” You should. This is clearly a situation involving unauthorized activity that created a serious risk of injury not only to the employee himself, but to his co-workers and possibly (depending on where your parking lot is located) members of the public. A disciplinary response would be especially warranted if your company has a formal policy that generally prohibits employees from engaging in activities that jeopardize the safety of the employees themselves or their co-workers. Even in the absence of this type of prohibition, presumably your policies proscribe “horseplay,” and the type of conduct involved here arguably falls into that category.
The severity of the discipline you elect to impose depends on a variety of factors: whether you have had other disciplinary problems with this employee; whether he previously has engaged in any conduct that put his co-workers’ safety in jeopardy; whether you have a progressive discipline system; whether your firm has encountered other types of problems in which employees have been injured, how you responded to them, and what discipline was imposed was imposed in those circumstances; other similar inquiries focusing on the dual issues of whether the punishment was proportional to the offense involved and your company’s past experience and past response.
A third inquiry is whether your firm should take any disciplinary action against any other employees? The answer to that question depends on whether other employees knew that the injured employee was involved in these activities and failed to report his intentions. Of course, you will need more information to evaluate this issue, including, at a minimum, whether the knowledgeable employees were supervisors or managers, whether they had specific information about the injured employee’s plans to demonstrate his “shooting device,” when they learned this information, whether they had attempted to intervene beforehand, whether they had directed the employee not to engage in this conduct in the company’s parking lot, etc.
As should be evident, the answers to these inquiries also may bear upon the nature of the discipline imposed on the injured employee. For example, if a manager had specifically instructed him not to give the demonstration (at least not on company property) and he did so anyway, a more severe disciplinary response may be appropriate. The underlying issue about which you need to be attuned with respect to the knowledge of the supervisors is a claim for negligent supervision.
Fourth and finally, you may consider whether there is anything else the company should do. At a minimum, you may wish to search the employee’s locker and/or work space to ensure that he has not brought any other “shooting devices” or explosive materials to the worksite. You also may want to use this incident as a “teaching moment,” reminding all of your other employees, either through a written communication or a series of meetings, that guns of any type (home-made or not) are not permitted on company premises, including the company parking lot, and that all employees need to avoid conduct that puts themselves, their fellow employees or members of the public at risk of injury.
Readers’ Responses:
Response # 1: The employer’s first and foremost responsibility is to provide all workers with a safe work environment (including any and all of the employer’s premises, not just the work building). The employee in question has risked the safety of both himself and his co-workers. In this case, the risk was significant as it involved what under the law would be considered a deadly weapon. The employee must be terminated.
Hopefully, the employer has a written policy against weapons and violence in the workplace and can stand on that to support the termination. But, even if they do not have such a written policy, the employee must be terminated for gross misconduct — jeopardizing the workplace safety.
There are separate issues involved in whether a claim for workers’ compensation can be successfully challenged.
Response # 2: Can you fire an employee for stupidity?
Donating Sick Leave, Quirky Question #2
Quirky Question # 2:
One of our employees is quite ill, with a very serious illness. She has used up all of her sick time. She is well liked and several of her co-workers want to donate all of their sick time to her. Are there any downsides to allowing these employees to donate their sick time? Are there any downsides to disallowing these sick time donations?
Roy’s Analysis:
Proposed donations of sick time constitute a magnanimous gesture and are to be commended. But they raise a number of potential problems for the employer that should be considered before the sick-leave donations are approved. Set forth below are five questions an employer should consider when evaluating these types of requests. Like many employment issues, it is far better to think these issues through in advance, rather than addressing them only after a specific situation (and corresponding potential problems) have arisen.
First, what will the employer do if one of the employees who has donated all of his/her sick time also becomes ill or is in an accident? Will the employer simply insist that the sick time has been used up and force the employee to take a leave without compensation? How long might this unpaid leave last before the absences would affect the employee’s continued employment?
Second, as one of the Reader Responses reflected, you need to examine whether any employees are being pressured into “donating” their sick time by friends of the employee who is ill? What if the employee who “encouraged” others to donate their sick leave is a manager? Someone with hiring/firing responsibility? If an employee did not agree to “donate” his/her sick time, would their be any adverse consequences for that employee?
Third, what if the employee who is sick is herself a manager with disciplinary authority, or hiring and firing authority? Would employees being requested to “donate” sick-leave time to this individual feel comfortable rejecting this request?
Fourth, what precedent is the company establishing with regard to the Americans With Disabilities Act? That federal statute requires, in certain circumstances, that employers make “reasonable accommodations” to individuals with disabilities, assuming that the employers can do so without suffering an “undue hardship.” Would the additional leave provided to the sick employee be compelling evidence by a disabled employee in a similar job that allowing someone in this position additional compensated time off was a “reasonable accommodation” that did not cause the employer an “undue hardship?”
Fifth, is the employer creating risks for discrimination litigation if another employee also becomes ill, uses all her sick time, and then turns to the company to obtain additional sick leave from her co-workers? What if the company approved the extended leave for the first employee (based on the donated time from other employees) but, for valid reasons, rejected the extended leave opportunity for the second employee, who happened to fall into a protected class?
The motivations underlying the sick time donation idea are admirable. Perhaps the company will conclude that regardless of the potential for some of the types of problems identified above, those risks are outweighed by the generous and compassionate attitudes and behaviors being fostered by the sick-leave donations. But, an employer should be aware that this approach may lead to potential problems. These problems should be considered in advance, before they actually arise, so that the employer and the employees alike know how alternative situations will be handled. When these issues are considered carefully, the company may find that an alternative approach is preferable, perhaps by assisting the employee through the already existing short-term or long-term disability programs available at the company.
Readers’ Responses:
Response # 1: Why wouldn’t you want to encourage employees to help each other?
Response # 2: On the surface, leave donation appears to be a great idea and they appeal to a great many. However, such programs breed ill feelings over the long haul. When you allow employees to donate leave, many develop the expectation that sometime in the future, it will be returned when needed. This is rarely the case and hence, the ill feelings start to develop.
Without intention, employees often experience undue pressure to donate, even when they don’t want to. It is similar to the feelings of a United Way campaign. The intentions are good; however, some employees believe in donating in other ways and can feel pressure from peers and supervisors to donate.
There are also the situations where employees abuse their leave, then find themselves in a position of needing more leave, so again employees may feel pressure to donate leave even though the employee could have avoided the situation by being more responsible.
Finally, there is the fairness issue. Who will be in charge of requesting donations and will the vigor in solicitation be the same for everyone?
As you can tell from my reasons listed, I have always been against leave donation programs. However, to ensure an individual is not left out in the cold, short-term and long-term disability plans should be considered and added to the benefits plan. These programs are one of the tools that can be used to keep ill feelings out of the workplace.
Response # 3: My experience with sick leave donations is that they create a nightmare issue for the tax folks in the payroll deparment. There are tax issues relating to passing along sick days and other paid vacation days from one employee to another. This illustrates another reason why our company will not allow these types of leave donations.
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