Performance Appraisals: Yes They Do Matter*

1. Performance Appraisals: Yes They Do Matter* presented byMichael S. Cohen, Esq. *This Outline should not be construed as legal advice or as pertaining to specific, factual situations. DM2/3240060.1

2. Equal Employment Opportunity

3. Equal Employment Opportunity • Protected EEO Groups • Federal • State • Local

4. Equal Employment Opportunity • Age • Citizenship • Disability (physical or emotional) • Gender identity and expression • Genetic information • Marital status/Parental status • National Origin/Ancestry • Pregnancy • “Protected” complaints • “Protected” leave • Race/Color • Religion/Creed • Sex • Sexual orientation • Veteran’s Status/Military status • Examples of “protected groups”

5. Equal Employment Opportunity • Where you advertise • Whether to interview • Questions asked in interview • Whether to hire • Compensation upon hire • Benefits • Pay increases • Hours of work • Assignments • Training provided • Whether to promote • Whether to discipline • Level of discipline • Whether to discharge • Whether to layoff • Performance Appraisals • Examples of Employment Decisions to Which EEO Protections Apply

6. Performance Appraisals

7. Introduction • Common Criticisms of Appraisals • Discourage teamwork/collaboration • Foster short-term orientation • Discourage prudent risk-taking • Too Subjective • Add value only at extremes • Too inconsistent • Autocratic • Self-Appraisals

8. Introduction • Benefits of Appraisals • Establish Expectations • Communicate deficiencies (pre-discharge notice) • Increase Consistency (by ensuring common criteria) • Provide benchmarks for subsequent distinctions among employees • Recognize (and retain) value performers

9. Introduction • Honesty • Problems with absence of candor • Truthful, but respectful • Forward looking • Establish realistic goals • Areas for growth/improvement • Next steps in career

10. Introduction • Utilization of Job Descriptions • Update • Connection to appraisal • Connection to Disciplinary Process • In addition to, not in lieu of

11. Implementation • Signature • Usually unnecessary • If require, require only acknowledgement of receipt as opposed to agreement • Personnel File • All appraisals in formal personnel file • Supervisors may maintain separately “informal notes”

12. Conducting the Appraisal • Where? • Who present? • Respect • Truthful • Balanced • Signature • Open-minded

13. Common Appraisal Mistakes • Late Evaluation • Employee relations issue in terms of employee’s value • Window for preemptive legal strike • Timeliness is critical

14. Common Appraisal Mistakes • Over-evaluation • False sense of security—employee • Devalue excellence of others • Possible evidence of bias (pretext) if subsequent adverse action • Ratcheting down evaluations

15. Common Appraisal Mistakes • No or inadequate comments • No guidance so improvement less likely • Absence of legal foundation • Start with comments

16. Common Appraisal Mistakes • Suggest All Inclusive • Closes the record (arguably) • Make clear examples only

17. Common Appraisal Mistakes • Focus on Cause • Irrelevant and diversion • Potential Predicate for ADA perceived disability claim • Focus on behavior/performance, not perceived cause • Report voluntary disclosures of medical emotional conditions to HR • Existence of EAP

18. Common Appraisal Mistakes • Focus on Intent • Too personal • Cannot prove it • Focus on outcome, not intent

19. Common Appraisal Mistakes • Absolutes • Overstated so unfair • Legally assailable—goes to credibility • Avoid absolutes

20. Common Appraisal Mistakes • Halo Effect • Hurts recipient • Focus on areas for growth for all employees

21. Common Appraisal Mistakes • Horn Effect • Debilitates employee • Possible evidence of bias • Balance

22. Common Appraisal Mistakes • Inconsistency between comments and rankings (either way) • Mixed message • Possible evidence of bias (pretext) • Begin with comments

23. Common Appraisal Mistakes • Inconsistency between current and prior evaluation (without interim notice) • Unfair, if surprise • Apparent inconsistency possible evidence • Begin with prior evaluation • Mid-year notice • New Supervisor: focusing forward without denying past

24. Common Appraisal Mistakes • Inconsistent applications of standards • Unfair if closer or harsher scrutiny • Possible evidence of bias • Comparator question

25. Common Appraisal Mistakes • Considering last event only or prior evaluation period • Unfair to employee • Unfairness as possible evidence of bias • Focus on current period only, except re: ongoing problem

26. Common Appraisal Mistakes • Bundling protected absences • Example: FMLA, Military • Unbundling

27. Common Appraisal Mistakes • Unilateral rather than bilateral • Employee comments • Supervisor comments

28. Thank you!

29. 1. Michael S. Cohen concentrates his practice in the areas of employment law training and counseling. Mr. Cohen has trained and counseled employers throughout the country on subjects including harassment prevention; workplace diversity; discipline and discharge; hiring and recruiting practices; performance evaluations; FMLA, ADA and FLSA compliance; leave of absence policies; performance management; workplace privacy; sexual orientation and gender identity in the workplace; substance abuse testing; workplace violence; records retention; conducting background checks; teens in the workplace and managing attendance problems. He has conducted trainings for executives, directors, managers, supervisors and employees in many industries, including financial services, healthcare, pharmaceutical, manufacturing, retail, real estate development, law firms and human services. Mr. Cohen also has conducted trainings for executives, deans and faculty in several institutions of higher education and secondary education. He has conducted more than 150 trainings in the last year. 2. Mr. Cohen has conducted investigations into claims of harassment and discrimination and has drafted employee handbooks, employment agreements, noncompete agreements and post-termination agreements. He has represented clients throughout the country in EEO and other administrative proceedings. 3. Mr. Cohen has been cited as a national authority on employment issues by The New York Times, The Associated Press, USA Today, MSNBC.com, The New York Daily News, New York Newsday, The San Francisco Chronicle, Law National, Law.com, HR Magazine, HR Executive Magazine, HR Executive Online, SHRM On-Line, Employment Law 360, Inside Counsel Magazine, What's Working in Human Resources, Workforce Management Magazine, Human Rights Campaign On-Line, Yahoo! Sports, The Sporting News, The Newark Star-Ledger, The Houston Chronicle, The New Orleans Times-Picayune, The Pittsburgh Tribune-Review, The Syracuse Post-Standard, The Ann Arbor News, The Harrisburg Patriot News, The Mobile Press Register, The Flint Journal, The Desert Sun, The Courier-Post, The Honolulu Advertiser, The Stamford Advocate, The Huntsville Times, AM New York, The Workplace Substance Abuse Advisor, Legal Issues in Collegiate Athletics, Talent Management, BusinessInsurance.com, AZcentral.com, Fort Worth Star Telegram, Honolulu Star-Bulletin, The Columbus Dispatch, The Myrtle Beach Sun News, Richmond Times Dispatch, Detroit News and Business & Legal Reports, Inc. He has been a regular guest lecturer on human resources issues at West Chester University for its Masters of Science in Administration program. He also is a member of the board of editors for the Privacy Law Journal and of the SHRM PA State Council Diversity Committee. 4. Mr. Cohenis a 1997 magna cum laude graduate of Temple University Beasley School of Law and a cum laude graduate of the University of Pennsylvania. 5. Areas of Practice - Employment Law; 6. Professional Activities - Pennsylvania Bar Association; Philadelphia Bar Association 7. Admissions - Pennsylvania; New Jersey 8. Education a. Temple University Beasley School of Law, J.D., magna cum laude, 1997 b. University of Pennsylvania, B.A., cum laude, 1993 9. Selected Speaking Engagements a. Speaker, “Employment Law Update and Harassment Prevention and Correction,” Association of Legal Administrators Annual Conference, New Orleans, May 19, 2009 (#1 ranked speaker) b. Speaker, “Harassment Prevention and Correction,” Delaware Valley Human Resources Summit, Philadelphia, October 3, 2008 (#1 ranked speaker of conference) c. Speaker, “Hiring and Interviewing and It's Not Just a Game: Examining Employment Law Subjects Through the World of Sports,” SHRM National Staffing Conference, Las Vegas, Nevada, April 29-30, 2009 d. Speaker, “Complying with Major Discrimination Laws and Union Awareness,” Pennsylvania Chamber of Commerce, Valley Forge, Pennsylvania, April 21, 2009 e. Speaker, “Sexual Orientation and Gender Identity Issues In The Workplace,” SHRM National Employment Law and Legislative Conference, Washington D.C., March 9, 2009 Michael S. Cohen Partner Duane Morris LLP 30 South 17th Street Philadelphia, PA 19103-4196 USA Phone: 215.979.1882 Fax: 215.405.2592 Email: mcohen@duanemorris.com