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Productivity / Performance

An easy way to head off retaliation claims: Keep past performance reviews

07/06/2009

Before you decide to throw out old evaluations and files, consider this: An employee may sue and refer back to those evaluations from memory. If she remembers nothing but positive performance reviews until a recent poor appraisal (engineered, she believes, to get her fired), you’ll need to be able to show her employment history wasn’t as rosy as she remembers.

Beware issuing completely negative performance reviews

07/06/2009

Supervisors often come down hard on underperforming employees during regular performance reviews. But sometimes, completely negative appraisals can come back to haunt you if the employee later sues. Juries are more likely to believe that you terminated the employee fairly if you include some positive feedback.

No evaluations? You could be called ‘Out!’

06/26/2009

If your organization doesn’t have a solid performance evaluation system in place, you’re taking a high-stakes gamble you just might lose. Discharged employees who sue will have a much easier time getting to a jury trial if you can’t produce performance evaluations that back up why you terminated them.

Poor review not grounds for FMLA retaliation suit

06/26/2009

All by itself, a negative performance review after an employee has taken FMLA leave doesn’t give the employee a reason to file a lawsuit. Unless the poor review is accompanied by something tangible—like a demotion or the loss of a pay increase—courts won’t see the review as retaliation.

Use ‘fresh-start’ policy to cut retaliation risk

06/26/2009

It often makes sense to give a fresh start to a poorly performing employee who has been complaining about discrimination. Place her in another position with a new supervisor, new co-workers and a clean disciplinary record. Then if her workplace problems persist, you can terminate her without worrying about retaliation claims.

If we fire a lazy employee, will she be eligible to collect unemployment benefits?

06/26/2009

Q. We have an employee who does not work very hard, and her productivity is only mediocre. If we terminate her, will she be able to collect unemployment compensation?

Deducting pay for poor work performance can destroy employees’ exempt status

06/22/2009

FLSA exempt employees must be paid the same salary regardless of the quality or quantity of their work in any given pay period. In other words, employers can’t make deductions from pay for poor work. That’s true even when the compensation comes in the form of an incentive plan.

Pregnant poor performer: Can we fire her?

06/22/2009

Q. We have a pregnant employee who is planning to take maternity leave soon. Her performance has deteriorated badly during her pregnancy, but we don’t think her pregnancy has anything to do with it. Can we terminate?

Should we contest? Fired for poor work, former employee now wants unemployment

06/11/2009

Q. After repeatedly warning an employee about her poor performance, we recently terminated her. At the termination meeting, she complained for the first time that she felt she’d been held to higher standards based on her gender. She has now filed for unemployment benefits. While we don’t think she’s entitled to the benefits, we wonder whether it makes sense to fight her claim. What do you think?

Don’t bend on disability accommodations if they could compromise safety

06/08/2009

It’s usually easy to accommodate employees’ everyday health problems, and employers should always be willing to consider making minor adjustments in work conditions. But be cautious about making accommodations that could affect workplace safety. Allowing an employee to bypass safety procedures or have a co-worker help her with them is almost always a bad idea.