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August 29, 2017

Honesty Is The Best Policy (Especially for Employers)

By:  Andrew G. Scott, Esquire

Inflated, generic, or incomplete performance evaluations plague employers of all stripes.  Ironically, most supervisors provide them to avoid or minimize conflict, but in the end, they often create larger problems.  This is especially true when an employee is later disciplined or terminated for performance-related issues and challenges the adverse action.  The disgruntled employee—and more likely his/her attorney—will likely point to the inflated or incomplete evaluations as evidence that the stated reason for the discipline was not the real reason but instead a “pretext” for some sort of illegal reason.  When trying to explain such an evaluation during a hearing or at trial, a judge or jury is likely to conclude either that the supervisor was not being honest when conducting the evaluation or not being honest in trying to explain it.  Either way, the supervisor’s credibility is damaged, and the employer suffers the consequences.

Although temporarily uncomfortable, providing an accurate “negative” evaluation may actually prevent an employee from challenging subsequent adverse action since sometimes employees are motivated by little more than wanting to find out “the real reason” for their discipline or termination.  Human Resources staff should train supervisors at all levels to provide accurate performance-related feedback.  Doing so not only minimizes the risk of being sued, but maximizes the chance of prevailing if sued.

Inaccurate performance evaluations or disciplinary documentation will also increase the chance that an employee terminated for gross misconduct will nevertheless be able to collect unemployment benefits since the employer may have increased difficulty in proving such misconduct—especially if the conduct is not an isolated extreme incident but a course of conduct that a reasonable employer would have documented.

Lastly, it is imperative that employers provide consistent reasons to administrative agencies for the discipline or termination of employees.  Failure to do so can result in damaged credibility in the eyes of a judge or jury should the employee ultimately file a lawsuit.

Andrew Scott is a Member of PK Law and part of the firm’s Labor and Employment Group. He represents private sector employers and public schools before federal and state courts, federal and state civil rights agencies, and the Maryland Office of Administrative Hearings on a variety of matters, including employment discrimination litigation, collective bargaining, teacher and student discipline, construction and procurement, and wage and hour claims. Mr. Scott also advises clients on the design and implementation of employment agreements, employee handbooks, policies and procedures.