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.
Follow
Disparaging Comments on Web, Quirky Question # 14
Posted by Roy Ginsburg on December 24, 2007 · Leave a Comment
Quirky Question # 14:
One of our employees discovered fortuitously (by Googling his own name) that a co-worker down the hall has been posting messages to a Web-blog, in which he identified the employee by name and made graphic, negative sexual observations about him. Not surprisingly, the two employees are not friends. The subject of the comments had no idea that this conduct was going on and is worried about how these comments already have or will affect his reputation (both within the company and outside of it).
We intend to terminate the employee who placed the comments on the Blog. Are there any risks associated with that discharge? We also wonder what actions, if any, the company should take vis-’a-vis the employee about whom the comments were made? Does that employee have any legal rights that could be asserted against either the company or the employee we expect to terminate?
Roy’s Analysis:
Your questions illustrate how changing technology, and the introduction of that technology into the workplace, generate new and unusual questions for the human resources professional.
First, I recommend that every employer, including your firm, have in place a written policy governing your employees’ use of your computer network and use of the Internet. Three essential provisions of such a policy are: a) your company owns the computer equipment to which your employees are provided access and/or which they are furnished to perform their job responsibilities; b) your employees should have no expectation of privacy in anything they send or receive via the company’s computer systems, and that your company reserves the right and sole discretion to monitor, with or without notice to the employees, everything they send and receive; and c) certain uses are prohibited – e.g. sending anything that is sexually explicit, offensive, or defamatory, or that reveals confidential, proprietary or trade secret information belonging to your company or its customers. Especially with such a policy in place, there should be little risk associated with terminating the employee who disregards these proscriptions.
Second, even if your company does not (yet) have such a policy governing computer use, you have legitimate bases for discharging the employee. Although you have not disclosed the precise comments that were included in the Web-blog, I’ll assume that it was both sexually explicit and offensive. As such, I have little doubt that the statements violate your sexual harassment policy. In my view, the fact that the statements were made on the Web, rather than in the office itself, makes little difference. Indeed, one could make the argument that publicizing the statements on the Web is far worse than making the statements to a few colleagues in the office.
Third, even without the sexual harassment angle, your firm has a sound basis for terminating the employee. Consider how your company would have reacted had the comments been expressed in a company meeting, posted on a company bulletin board, or communicated to a small group of co-workers. The fact that the offending employee chose to use a modern telecommunications medium should not alter the analysis. The comments not only are guaranteed to create an awkward (if not unworkable) situation between the two employees, they also may poison the offending employee’s ability to work with others. Who, for example, will want to work with the employee who posted the comments if they are fearful that he might treat them in the same way? Even if they were not concerned that he will make comparable comments about them, you have the “creep” factor to consider. Will anyone want to work with a co-worker who has posted graphic sexual information about another one of your employees?
Fourth, as for the unwilling subject of the Blog, I would express sympathy for his plight. I also would apprise him of the company’s decision to terminate the offending employee (following an appropriate investigation). You might even take advantage of these circumstances to remind all of your employees of your company’s policy regarding use of your company’s computer systems, explaining that disregard of the policies may result in termination. You also might offer to provide any assistance to the employee in efforts he makes to have the information removed from the Web-blog.
Beyond those steps, however, I would be circumspect about taking other actions, at least not without the input and express approval of the adversely affected employee. For example, if the specific circumstances were addressed publicly within your company, this might simply draw more attention to the information set forth on the Blog and cause your remaining employee further discomfort or embarrassment.
Finally, you have inquired about whether the person about whom the Blog was written might have legal recourse against his co-worker. He may. Many states, including Minnesota, have recognized causes of action for invasion of privacy, which includes the concept of “publication of private facts.” This legal theory is grounded on the notion that certain private information about an individual deserves to remain private. Your employee also may have a claim for defamation, depending on the nature, content and falsity of the statements made. Lastly, your employee may have rights under state telecommunications laws.
I would not recommend that the company become involved in providing advice to this employee on his legal options against his co-worker. If he wishes to pursue that avenue, he can do so with the help and guidance of private counsel.
Filed under Defamation, Discharge, Discipline, Disparaging Comments, Sexual Harassment · Tagged with