Re: den.list-d Digest V99 #209

[IAMCOENS@aol.com]

To Aaron Jones re Appraisals and Legal Evidence
Appraisals are not required as legal evidence in 99% of  U.S. workplaces 
(exception is those  workplaces that have legally binding express or implied 
contracts promising appraisal to employees).  Also, myth is that appraisals 
constitute a good form of evidence.  As a labor and employment attorney for 
nearly twenty years (and for ten years before that handling age 
discrimination cases for the U.S. Labor Department and EEOC), I have found 
that appraisals do more damage than good in helping the employer's case (for 
example, employees use them to prove they were a good employee until the new 
supervisor arrived, so obviously SHE is the problem!)  I wondered if my 
perspective was unique, and this past spring, I surveyed Labor and Employment 
attorneys at a meeting of the Michigan Bar about various H.R issues.  69% of 
62 attorneys responding had found in that appraisal evidence overall did not 
create an advantage for the employer or mostly benefited the employee.

Yes, you need documentation in these days when an employee has 288 ways to 
sue the employer for wrongful discharge, but it need not be in the form of 
appraisal---counseling memoranda, written directives, notices, remedial 
measures, and a spate of other forms of evidence can be used to plainly prove 
good cause or non-discriminatory motive.  A good many labor attorneys 
(slightly more than half in my survey) continue to recommend appraisals 
because they believe that supervisors won't do documentation at all unless 
someone holds a 44 magnum to their temple (this is based on high number of 
cases we labor attorneys get where supervisors did not do their jobs).  But 
there are ways to educate managers to ensure that timely notice, remedial 
measures and documentation are provided for when, as Dr. Deming  said, "the 
employee needs special help" because "he is outside the system."  Abolishing 
performance appraisals, as Dr. Deming recommended, is a sound and logical 
strategy, and it has nothing to do with abandoning  the collection of legally 
prudent documentation.
Tom Coens
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