How To Avoid Successful Lawsuits by
Non-Performing Employees

By Patricia Eyres

It is a frustrating fact that even poorly performing employees often win lawsuits for discrimination or wrongful termination.  They often claim:

·        “I didn’t know what was expected of me;”

·        “I didn’t know that I wasn’t meeting job standards;” or

·        “I didn’t know this awful thing (termination, demotion etc.) could happen to me.”

How can an employee who is dismissed for sub-par performance win such a lawsuit?  Often, it is because the supervisor failed to communicate in a clear manner, or at all, exactly what job standards applied and what the particular employee needed to do to meet those standards.

Equality of opportunity isn’t the same as equality of outcome.  In the courtroom, the dismissed employee doesn’t have the burden to prove he would have succeeded; but rather, simply that he wasn’t given an equal opportunity to succeed.

Many managers and supervisors are terrified of the performance appraisal process. It is difficult to convey “bad news” to an employee who is likeable and trying hard, but just isn’t meeting performance expectations. It can be even more difficult to provide criticism to an employee who is neither likeable nor demonstrating a positive attitude, because the leader fears a defensive reaction. Still, the most frequent reason for ineffective or non-existent performance appraisals is the absence of specific, measurable standards with which to perform a viable evaluation. This creates business inefficiencies and very real legal risks.

Appraising employee performance with reference to a set of written standards, which mirror the job descriptions, is a valuable approach. Standards-based appraisals are an especially effective way to document that employment decisions, such as decisions to terminate employment, withhold pay increases, or promote one employee over another, were made fairly and without illegal prejudice.

Objective standards, communicat­ed clearly and consistently to employees, are critical. Employees should understand clearly what is expected of them. Clear standards have the following attributes:

1. Every Position Should Have Performance Standards.

To say that written standards cannot be prepared for a position is to say that the supervisor does not know what to expect of an employee and that the employee's work cannot be objectively evaluated.

2. Standards Should Cover Specific Positions, Not Broad Classes Of Positions.

Even though certain employees may have the same job title, different standards should apply for these employees if significant differences in operating practices or working conditions exist. For example, a clerk typist in accounting and one in public relations would perform different work, probably in different quantities. Only when the duties and working conditions of positions are identical should a single set of standards apply to them.

3. Task/Responsibility Statements Need To Be Written Or Reviewed Before Standards Can Be Written So That Standards Can Be Set For Each Task.

A task is a major unit of work or significant component of the job. The task statement should be broad enough to serve as a significant tool for evaluating an employee's performance, but not so broad that it becomes burdensome or impossible to develop standards for the task.

·        It is important to avoid overly broad statements such as "Does routine clerical work," which may, in the case of a clerk, describe the entire job. Statements of overall responsibility do not give enough help in defining a job. In general, statements with words such as "supervises," "coordi­nates," or "directs" probably describe overall responsibilities rather than tasks.

·        Overly narrow statements should also be avoided. For example, "places correspondence in file folders" is only a sub-task of the major task "maintains correspondence files."

·        Relatively minor tasks should be omitted. Remember that what is a major task for one employee may be a minor task to another employee. For example, the maintenance of correspondence files, while a significant task for a clerk, is only a minor task for a civil engineer.

·        For ease in rating, most jobs should be described in terms of four to eight major tasks.

4. Standards Should Apply To Specific, Significant Tasks Of The Position.

If the employee's responsibilities are expressed in vague, general language, it will be difficult ‑ perhaps impossible ‑ to write clear, meaningful standards for the job. Wherever possible, tasks should be expressed in concrete terms that describe definite actions that the employee takes. Also, standards should normally not be written for temporary or unusual responsibili­ties or minor tasks, since this would make the standards too long and complicated, as well as difficult to communicate and administer.

5. Every Task Should Have One Or More Performance Standards By Which Accomplishment Of The Task Can Be Judged.

Standards should specify what level of performance is expected in relation to a given task, that is, what the employee is expected to do and how well he or she is expected to do it. Performance standards should serve as benchmarks that tell the HR professional and employee when and under what conditions the employee's perfor­mance of the task is satisfactory. "Satisfacto­ry" means a "good" level of performance, reflecting what an employee in that job can normally be expected to do.

6. Standards Should Reflect A Fully Acceptable Or A Satisfac­to­ry Level Of Performance. 

Standards should be attainable and should reflect what is expected of a fully trained and competent employee. Standards must be high enough for the work unit to accomplish its objectives and low enough for competent employees to reach them.

7. Standards Should Be Expressed Precisely.

The more precisely standards are stated, the easier it will be to evaluate performance and give employees guidance on what is expected of them. For example, "Responds to requests for estimates in accor­dance with established deadlines" is not as precise as "Responds to requests for estimates within two days of receiving a request." Vague or general words or phrases, such as "reasonable," "seldom," or "rapidly," should be replaced with more precise terms whenever possible.

Patricia S. Eyres is an experienced attorney, with over 18 years defending businesses in the courtroom. She is a full time professional speaker and author. Her most popular presentation is “Leading Within Legal Limits™. She can be reached at www.PreventLitigation.com or at 800-548-6468