Employee performance reviews are one of the most crucial tools a San Diego employer can utilize to legally and effectively manage workers.  The goal of most interactions with an employee should be to increase effective performance and reduce negative workplace consequences.  The same holds true for companies searching for ways to reduce legal risks as an employer – especially during reviews.

The language you choose may have lasting consequences on your relationship with the worker, as well as the Court’s perspective when a dispute arises.  Evaluations are by their very nature extremely personal, and employers should carefully choose comments delivered in person and recorded in writing.  Reviews should be written whenever possible in the absence of anger or emotion, and only after careful reflection on all aspects of an employee’s performance.  The content of the performance review can strengthen or reduce employee morale, affect productivity, encourage positive development or expose your company to an employment dispute.  What are some examples of common issues to consider?

One of the most common phrases to remove from your lexicon may be “I/We understand.”  This subtle response conveys empathy, but it also contains the perception of an excuse for poor performance.  Demonstrate your understanding by documenting the worker’s position, and the impact that it has brought to the employee’s performance and the greater workplace.  Documenting the worker’s perspective shows them (and the Court) that you listened, and this will have a positive impact.  We all want to feel “understood” and that our concerns on an issue have been “heard.”

Avoid blanket assertions such as “You’re wrong,” or “What’s the problem?”  Confrontational issues set the wrong tone for achieving your ultimate goal – increasing employee performance – and only put the worker in a defensive position.  Acknowledge your recognition that the employee disagrees with your evaluations, while reinforcing the accuracy of the review: “It’s clear you disagree, but we believe the evaluation is an accurate assessment of your performance.”  When encountering resistance or outright challenge, resist the common tactic of asking “what’s the problem?”  Ask questions that encourage direct feedback from the employee that will help to document the issue and their performance, but that also might expose genuine issues.  “What were the challenges or issues, from your point of view, that made it difficult for you to (complete your work) (accomplish “x” task) (resolve the argument with co-worker/customer)?”


Finally, try to avoid any statements meant to reassure the employee their job is safe.  “You’ll be ok, as long as you…” or “You’re not going to be fired as long as …”  This may legally come back to bite you in the future, as it may be implied as a continuing employment contract that a California Court may find to be binding.  Keep your comments focused upon the metrics or behaviors associated with the review, and the performance improvements you’re looking for.

Employee related lawsuits are at their highest point in history, and there are many steps a San Diego business should take to reduce legal risks as an employer and achieve the desired goal: increased performance and profitability.  We invite you to contact the “lawyers for employers” at the Watkins Firm for a free consultation at 858-535-1511.  Learn about the value of our business counsel, and the steps we can take together to reduce your legal exposures and increase employee effectiveness within California’s complex wage and hour and employment laws.


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