Jottings By An Employer's Lawyer

Wednesday, June 27, 2012

Two Sacred Cows - Performance Appraisals and Job Descriptions - Time for the Scrap Heap?

I don't always appreciate non-trial lawyers telling me how to try a case (although I try to listen, because often I can learn something that is helpful), and so I am also leary of getting too far into the realm of HR advice.

But I have long been a skeptic on both annual performance reviews and job descriptions. In defending employers over the last 35 years, I would say I have seen both types of documents end up as Plaintiff's Exhibits, not Defendant's exhibits more often than not.  Since the employer is in control of both, even if it were 50/50, that's a pretty poor ratio.

The problem is that for the most part they are either rushed through as after thoughts (performance reviews) or done in a vacuum and put on a shelf (job descriptions).

About job descriptions I have often said if they are accurate and up to date then they are good; unfortunately that does not describe very many job descriptions I have seen. That basic premise holds true for performance appraisals as well.

It's one thing for lawyers who see these documents through the admittedly cloudy filter of litigation to make those kind of comments, but it seems those who actually do specialize in HR advice are having some of the same thoughts.

Today's comment was sparked by the recent Harvard Business Review posting by Eric Mosley, Crowdsource Your Performance Reviews, which was inspired by a study of HR leaders where 45% said they "did not think that annual performance reviews are an accurate appraisal for employee's work." 

So to HR professionals, just a thought from the cheap seats, have an open mind about whether these rituals of HR are still worthwhile as they are, or even at all.

My sense has been that job descriptions are a necessary evil defending an ADA case, be it refusal to hire or refusal to accommodate. How can one say an individual can not perform the necessary elements of a given job without a showing it is such. (I had a hard time convincing the NY Division of Human Rights that a deaf mute was not qualified to sell high priced stereo and sound equipment for but one example because of the absence of a description.) The problem is that many of said descriptions seem to have been cobbled together in the wake of the passage of the passage of the Act in 1990, filed, and forgotten since.
On performance ratings, I defended a store with over 230 associates where the CP was rated 89 out of 100 in performance. I found that in that store she was the lowest rated associate, all of the remaining 229 were in the 90 to 99 range, In other words, they proved useless as the "g" in lasagna.
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