Many employers and supervisors loathe the idea of written employee performance reviews. Written performance reviews are often not completed because other important tasks, like completing the work of the company, are the priority. However, if your company is ever faced with employee claims discrimination, then it is critical that you have written documentation of employee performance. A 2013 federal circuit court decision in Rangel v. Sanofi Aventis US demonstrated what a big difference this documentation can make.
Rangel v. Sanofi Aventis US (Court of Appeals, 10th Circuit)
In this case, the employee had a good argument, one that might appeal to a jury. He claimed he was terminated because of his age. The employee was 61 years old, and his sales results were among the highest in his district. Why would the company terminate an older worker with high sales when they retain younger workers with lower sales? On its face, the argument has some appeal. Add to that the fact that the employee had positive performance reviews until two years before his termination. So it looked like maybe someone targeted him, and age may have been a factor.
The company was able to show two things:
- Two years before the employee’s termination, the company instituted written performance standards that applied to all sales professionals nationwide. So the company, and the sales staff, knew the performance measures that would be used to judge their performance.
- Over the following two years, the company documented specific deficiencies in this employee’s performance, and identified ways that he could improve in more than 20 memos and performance reviews. The employee simply failed to follow the established written guidelines, and did not make improvements despite plenty of warning. As a result, his performance ratings fell to “below expectations.”
When the time came for the company to make a reduction in force, those employees with “below expectations” ratings were terminated. So it did not matter that this employee’s sales results were higher because that was not the criteria used to select those eliminated.
Insights for Employers
- Set written performance standards for all employees. The standards and measures of performance should include objective language, where possible. (Subjective: treats people well; Objective: received at least 20 customer compliment cards).
- Document every conversation about performance, indicate how the employee’s performance fell below expectations, and suggest ways the employee can improve their performance.
- Do not neglect written performance reviews!
Please contact a Gjording Fouser lawyer if you would like any additional information about this topic or any other employment issues facing your company.