Performance evaluations can be an effective management tool and can also serve as a means to preventing wrongful discharge and discrimination claims. However, if used improperly, the employee evaluation can lead to costly litigation. A proper evaluation advises the employee whether he or she meets the employer's expectations. On the other hand, a bad evaluation process does not accurately inform employees of deficiencies in their performance and can actually lead the employee and others to believe that the performance is satisfactory or even above expectations. For this reason, an employer should determine what benefit it actually receives from the use of employee evaluations and the effectiveness of how they are being used and if they should be done at all.
The supervisor responsible for completing the evaluation will make the difference between a good evaluation process and a counterproductive one. If the evaluator is honest, timely and forthcoming about the employee's performance, the process will be beneficial by advising employees whether they meet their employer's expectations and allowing them to improve their deficiencies before discipline or termination becomes necessary. However, in many instances, the evaluator will rate employees as "satisfactory" without specific reference to actual performance. This is sometimes due to a lack of training or simply a desire to avoid confronting the employee. In the rush to complete forms and meet competing demands, supervisors may use the same comments for nearly all their employees. If an employee is later terminated for poor job performance, these "satisfactory" evaluations can be used against the employer as evidence of satisfactory job performance. For this reason training on the process and what is expected of the evaluator is extremely important.
Generally, the best approach to the use of employee evaluations is one which incorporates honesty, accuracy and timeliness as a means to communicate the level of performance. Evaluators should rate each employee accurately using an honest evaluation which is reflective of true performance and clearly outlines what will be expected of the employee in the future. They should also discuss the evaluation with the employee in detail, giving them full opportunity to comment, and have them sign that they have been made aware of it. It is also important to use performance evaluations consistently. Any preferential treatment or leniency toward an employee may be cited as evidence of discrimination by a similarly situated, but less favorably treated, employee. Finally, never use an evaluation as a last-minute attempt to document performance problems in order to justify termination. This practice will undoubtedly come back to haunt the employer at a later time.
Lastly, consider using every day coaching as a part of your performance evaluation process. Train your supervisors to give good and bad feedback on a frequent basis, so that no one is blindsided by a bad evaluation. Whatever process you use, keep in mind that it should be used as a means to correct problem behavior before it becomes an issue that will be subject to discipline or termination.
For samples or more information on this or any other personnel related matters contact Andrea Shindlebower.
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Random Drug Testing – What Employees Are Considered Safety Sensitive?
Because cities are governmental entities, cities should be aware that randomly drug testing employees who do not serve in safety sensitive positions could result in significant liability. Testing for employees occupying positions that are not categorized as safety sensitive must be based on a reasonable suspicion that drug use is occurring or in post-accident circumstances. The information below can be used to help guide you in determining which positions may be safely categorized as safety sensitive. This information should be reviewed with your city attorney before any action is taken.
Safety sensitive positions are those that contain duties that are routinely performed as a part of that position which could reasonably be expected to affect the health, safety and security of others.
Below is a list of possible public employees that could be considered to have exceptional safety-sensitive responsibilities in the area of public safety. They include:
- Police officers
- Emergency dispatchers
- Emergency Medical Technicians/Paramedics
- Heavy equipment operators
- Employees with commercial driver’s license (CDL)
- Mechanics working on CDL regulated vehicles
- Gas pipeline workers
Additionally, a case can possibly be made that personnel who drive certain city vehicles (such as vehicles transporting senior citizens, the handicapped and children), city swimming pool life guards, and personnel supervising children on city playgrounds can be included in the category of safety sensitive personnel.
When making these determinations the city must keep in mind that random testing can only be done on an employee whose job duties can be shown to directly impact public safety.
For more information on drug testing or other personnel matters, contact Andrea Shindlebower with the KLC Legal Department.
The following series of articles deal with employee discrimination issues. (Dates indicate when the article originally appeared in KLC DirectLine).
At some point, cities will have to deal with the necessity of imposing employee discipline. It is an unpleasant task for both the city and the city employee and can involve a range of emotions which naturally follow when the subject of discussion is the employee's "substandard performance." The sensitive nature of the process makes this area one which is especially susceptible to allegations of unfair employment practices which carry with them the potential for substantial financial liability. In order to prevent this from happening, the employer must become familiar with the applicable law, city personnel policies, as well as understand the rights and obligations of the employer in a given situation, and know when to consult legal counsel. Doing so will prevent the city, as the employer, from losing control of the employment relationship and minimize the city's liability exposure.
Employees in the Commonwealth of Kentucky are terminable "at-will" unless they fall into an exception to the employment at-will doctrine. Next week’s article will review the doctrine of employment at-will and the exceptions thereto, and give a brief discussion of some of the liabilities commonly encountered by cities.
So assuming that the employee is at-will, one of the most important things that a city can do to prevent liability is to follow the progressive discipline section of their personnel policies and to document each and every step. And, keep in mind that discipline should be viewed as a means to correct bad behavior not as a means to terminate an employee.
If termination is inevitable get advice from your city attorney. But if your city attorney needs assistance, keep in mind that members of KLC and KLCIS have access to valuable services and resources that will help you stay on track. By taking advantage of these member benefits before you take action, you can protect city resources and avoid unnecessary liability.
These resources include the KLC legal staff at 1-800-876-4552. We can provide you with sample personnel policies and copies of applicable laws, as well as information about common employment issues related to FMLA, ADA, the Police Officers Bill of Rights, civil service, and much more.
In addition, if you are a member of the Kentucky League of Cities Insurance Services, your city may also have access to additional legal defense counsel to help avoid legal liability. When contacting the KLC Legal Department with your personnel issues, please make sure to tell us if you are a KLCIS customer so we can help you determine whether your coverage includes eligibility for this liability defense program.