This is month's Legal Minute with Jackson Kelly PLLC picks up with our review of the lifecycle of the employment relationship and reminds employers about the importance of managing and documenting employee performance. Given the regulatory environment in which FQHCs operate, and the critical nature of the services that FQHCs provide, conducting periodic performance evaluations can serve as an important tool in advancing the mission of FQHCs.

 

As a practical matter, employee performance evaluations serve three basic purposes: (1) providing formal feedback regarding employee performance; (2) providing the employer with a tool to measure and assess performance over time; and (3) creating a record to support compensation and promotion decisions. These considerations are reviewed below.

 

First, most employees want feedback in some form or fashion, and employers are well served to make sure that there exist formal and informal opportunities to do so. Obviously, formal feedback would include the periodic performance review, but what about informal feedback? I routinely encourage employers to provide immediate feedback regarding critical performance issues. Frankly, the annual performance evaluation is rarely the best time to raise an issue for the first time. If you have an employee whose performance needs addressed, it is better to do so as soon as possible to correct any deficiencies.

 

Second, performance evaluations represent a diagnostic tool, allowing employers to measure and assess performance over time. Doing so allows employers to create tangible goals for the employee, and it usually allows employers to develop reliance data points to set compensation. This helps limit the role of subjectivity in the compensation setting process.

 

Third, performance evaluations create a record and constitute a form of proof, and that's why you're reading an article about performance management written by an employment lawyer. Unfortunately, FQHCs are not immune from the proliferation of lawsuits involving claims of wrongful discharge or retaliation. A performance evaluation system will not prevent these type of lawsuits, but it will help to ensure that lawsuits are defendable. Developing a performance evaluation program will allow you to demonstrate how and why certain actions were taken.

***

When conducting performance reviews, you need to make sure that the information communicated to the employee is meaningful and descriptive. By that token, noted below are common mistakes that are typically made during performance reviews:

 

           1.   Vagueness (e.g., "You're doing good work!")

           2.     Providing consistently perfect ratings.

           3.     Focusing on recent episodes rather than entire review period.

           4.     Lack of preparation for the review (i.e., no message to the employee).

           5.     Minimal feedback (i.e., using a generic form; going through the motions).

           6.     Failing to provide recognition for good work.

            7.     Failing to be truthful.

            8.     Failing to set goals (i.e., no follow-up until next review cycle)

 

As these common mistakes indicate, adopting and implementing a performance review process will not be meaningful unless it involves the time and effort necessary to relay critical feedback to your workforce.

 

***

Justin M. Harrison is a labor & employment lawyer at Jackson Kelly PLLC. He is available for consultation through a special retainer relationship with the WVPCA. Justin can be reached at (304) 340-1358, and you can follow him on Twitter @wvhrlawyer.