Performance Appraisals in Law Firms: Yes, They Do...

Performance Appraisals in Law

Firms: Yes, They Do Matter

Presented by

Michael S. Cohen, J.D.

HR22

5/4/2018

10:30 AM

The handout(s) and presentation(s) attached are copyright and trademark protected and provided for individual use only.

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Performance AppraisalsIn Law Firms:

Yes, They Do Matterpresented by

Michael S. Cohen, [email protected]

(215) 979-1882Twitter: @Cohen_HR_Law

EQUAL EMPLOYMENTOPPORTUNITY

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mailto:[email protected]

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Equal EmploymentOpportunity

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1. Protected EEO Groups

a. Federal

b. State

c. Local

• Age

• Citizenship

• Disability(physical or emotional)

• Gender identity and expression

• Genetic information

• Marital status/Parental status

• National Origin/Ancestry

Equal EmploymentOpportunity

2. Examples of “protected groups”

• Pregnancy

• “Protected” complaints

• “Protected” leave

• Race/Color

• Religion/Creed

• Sex

• Sexual orientation

• Veteran’s Status/Military status

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PERFORMANCEAPPRAISALS

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Introduction

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1. Common Criticisms of Appraisals

a. Discourage teamwork/collaboration

b. Foster short-term orientation

c. Discourage prudent risk-taking

d. Too Subjective

e. Add value only at extremes

f. Too inconsistent

g. Autocratic

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Introduction

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2. Benefits of Appraisalsa. Establish Expectationsb. Communicate deficiencies

(pre-discharge notice)c. Increase Consistency

(by ensuring common criteria)d. Provide benchmarks for subsequent

distinctions among employees

e. Recognize (and retain) value performers

Introduction

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3. Recommendations

a. Continue to conduct appraisals

b. Problems relate to implementation, not inherent to appraisals

c. Redesign to minimize problems, but retain for legal/HR benefits

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Elements of Appraisals

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1. Establishing the Criteria

a. Importance

b. Specific examplesi. Traditional

ii. Contra-criticisms

iii. Values

iv. Leadership

c. Open criterion

d. Linkage


2. Applying the Criteriaa. Purposes

b. Responses

i. Evaluating of evaluators

ii. Comparator question

c. Employee input

i. Self-Appraisals

d. Uniform date for appraisals

e. Timing issues

i. When

ii. Why important 9

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3. Honesty

a. Problems with absence of candor

b. Truthful, but respectful

4. Forward looking

a. Establish realistic goals

b. Areas for growth/improvement

c. Next steps in career


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5. Linkage to Paya. General - a “factor”

b. Specific - formula

c. Timing

i. If linkage - same time

ii. If no linkage - different time

6. Connection to Disciplinary Process

a. In addition to, not in lieu of

7. 360 Reviews

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Conducting the Appraisal

6. Listen12

1. Where?

2. Who present?

3. Respecta. Truthful

b. Balanced

4. Signature

5. Open-minded

Implementation

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1. Signature

a. Usually unnecessary

b. If require, require only acknowledgement of receipt as opposed to agreement

2. Personnel File

a. All appraisals in formal personnel file

b. Supervisors may maintain separately “informal notes”

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Informal Feedback

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1. Humanize Self

a. Be a person

b. Show empathy

c. Share interests

2. Inspire Calm

a. Stressful times

b. Maintain control

c. Open conversations

Informal Feedback

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3. Give Thanks

a. One-on-One

b. Group settings

c. Yes, it’s their job but so what

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Informal Feedback

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4. Minimize Closed Door Meetings

a. Problem with “Open Door” Policyi. Bring the door to them

ii. Get out of your office

b. Problems with “Closed Door”i. Limits communication

ii. Creates tension

iii. Inspires nervousness

Informal Feedback

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5. Checks Ins

6. Listen

a. Easier said than done

b. Put down the smart phone

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Common Appraisal Mistakes

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1. Late Evaluation

a. Employee relations issue in terms of employee’s value

b. Window for preemptive legal strike

c. Timeliness is critical


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2. Over-evaluation

a. False sense of security—employee

b. Devalue excellence of others

c. Possible evidence of bias (pretext) if subsequent adverse action

d. Ratcheting down evaluations

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3. No or inadequate comments

a. No guidance so improvement less likely

b. Absence of legal foundation

c. Start with comments


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4. Suggest All Inclusive

a. Closes the record (arguably)

b. Make clear examples only

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5. Focus on Cause

a. Irrelevant and diversion

b. Potential Predicate for ADA perceived disability claim

c. Focus on behavior/performance, not perceived cause

d. Report voluntary disclosures of medical emotional conditions to HR


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6. Focus on Intent

a. Too personal

b. Cannot prove it

c. Focus on outcome, not intent

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7. Absolutes

a. Overstated so unfair

b. Legally assailable—goes to credibility

c. Avoid absolutes


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8. Halo Effect

a. Hurts recipient

b. Focus on areas for growth for all employees

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9. Horn Effect

a. Debilitates employee

b. Possible evidence of bias

c. Balance


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10. Inconsistency between comments and rankings (either way)

a. Mixed message

b. Possible evidence of bias (pretext)

c. Begin with comments

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11. Inconsistency between current and prior evaluation (without interim notice)

a. Unfair, if surprise

b. Apparent inconsistency possible evidence

c. Begin with prior evaluation

d. Mid-year notice

e. New Supervisor: focusing forward without denying past


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12. Inconsistent applications of standards

a. Unfair if closer or harsher scrutiny

b. Possible evidence of bias

c. Comparator question

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13. Considering last event only or prior evaluation period

a. Unfair to employee

b. Unfairness as possible evidence of bias

c. Focus on current period only, except re: on going problem


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14. Bundling protected absences

a. Example: FMLA, Military

b. Unbundling

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15. Unilateral rather than bilateral

a. Employee comments

b. Supervisor comments

Best Practices

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1. Continue to conduct appraisals

2. Be timely, honest and fair

3. HR/Administrator review, if feasible

4. Train appraisers regarding benefits of well-drafted appraisals and risks of poorly-drafted appraisals

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Thank You!Please follow me on Twitter

@Cohen_HR_Law

Michael S. Cohen

Partner

Duane Morris LLP

30 South 17th Street

Philadelphia, PA19103-4196

USA

Phone: 215.979.1882

Fax: 215.405.2592

Email:

[email protected]

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 includingharassment prevention; workplace diversity; discipline and discharge; hiring and recruiting practices; performance evaluations; FMLA, ADA and FLSA compliance; leave of absence policies; performancemanagement; workplace privacy; sexual orientation and gender identity in the workplace; substance abuse testing; workplace violence; records retention; conducting background checks; teens in theworkplace 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 highereducation and secondary education. He has conducted more than 150 trainings in the last year. Mr. Cohen has conducted investigations into claims of harassment and discrimination and has draftedemployee handbooks, employment agreements, non-compete agreements and post-termination agreements. He has represented clients throughout the country in EEO and other administrativeproceedings. 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 YorkNewsday, 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'sWorking in Human Resources, Workforce Management Magazine, Human Rights Campaign On-Line, Yahoo! Sports, The Sporting News, The Newark Star-Ledger, The Houston Chronicle, The NewOrleans 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, TalentManagement, BusinessInsurance.com, AZcentral.com, Fort Worth Star Telegram, Honolulu Star-Bulletin, The Columbus Dispatch, The Myrtle Beach Sun News, Richmond Times Dispatch, Detroit Newsand Business & Legal Reports, Inc. Mr. Cohen is a 1997 magna cum laude graduate of Temple University Beasley School of Law and a cum laude graduate of the University of Pennsylvania.

2. Admissions - Pennsylvania; New Jersey

3. Education

a. Temple University Beasley School of Law, J.D., magna cum laude, 1997

b. University of Pennsylvania, B.A., cum laude, 1993

4. Selected Speaking Engagements

a. "Dear Helga Returns (Again) With New and More Complicated HR Problems: 5th Anniversary Edition – Top 5 Lists!" SHRM Annual Conference, New Orleans, LA, June 19, 2017

b. "Time to Go Back to School – Handbook Updates for 2017," "Dear Helga Returns With More and Complicated HR Problems," Association of Legal Administrators Regional Legal Management Conferences, Las Vegas, NV, Nashville, TN, September 8, 2017, October 13, 2017

c. "Managing Diversity and Inclusion: Religion and LGBTQ Issues in the Workplace," "Five Ways to Enhance Your Hiring Process," Association of Legal Administrators Human Resources

d. "A Practical Look at Updating Your Handbook: Change with the Laws," "Dear Helga Returns (AGAIN) with New and More Complicated HR Problems," SHRM Annual Conference, Washington, DC,June 19-20, 2016

e. "The Minefields of All Minefields – Wage and Hour Issues in Law Firms," "Embracing Diversity by Preventing Harassment," Association of Legal Administrators Business of Law Conferences, New Orleans, LA; Atlanta, GA, Las Vegas, NV, September-October, 2015

f. Speaker, "Devaluing Diversity" and "Creating an LGBTQ-Friendly Work Environment," SHRM Diversity Conference, Boston, Massachusetts, October 26-27, 2015

g. Speaker, "Dear Helga Returns (Again) With New And More Complicated HR Problems," SHRM Annual Conference, Las Vegas, Nevada, June 29, 2015

h. Speaker, "Human Resources 101," Association of Legal Administrators Annual Conference, Toronto, Ontario Canada, April 20, 2014

i. Speaker, "Motivating Employees in the New Economy," Association of Legal Administrators Annual Conference, Toronto, Ontario Canada, April 20, 2014

j. Speaker, "Background Checks – Criminal, Credit and Social Media," SHRM National Legislative and Employment Law Conference, Washington, DC, March 17, 2014

k. Speaker, "Helga’s Back And You’re Never Going To Believe What Her Employees Did This Time," and "Creating on LGBT-Friendly Workplace," SHRM Annual Conference, Orlando, Florida, June 24-25, 2014

l. Speaker, "HR 101: Basic Training," "HR 201: Inspire, Motivate and Achieve Results," and "HR 301: Mission Possible – Conducting Internal Investigations," Association of Legal Administrators Annual Conference, Toronto, Ontario, May 20-21, 2014

m. Speaker, "Background Checks-Criminal, Credit and Social Media," SHRM Employment Law and Legislative Conference, Washington, D.C., March 17, 2014

n. Speaker, "Dear Helga: You’re Never Going To Believe What My Employee Did" and "Time To Go Back To School – Updating Your Employee Handbook," SHRM Annual Conference, June 16-17, 2013,Chicago,Illinois

o. Speaker, "What´s Your Site – Social Media in Hiring" and "Documenting Performance – Yes It Does Matter," SHRM Talent Management Conference, May 16-17, 2012, Las Vegas, Nevada

p. Speaker, "Out of the Closet and Into Your Workplace – Sexual Orientation and Gender Identity" and "Background Checks – The Law Has Changed," Lehigh Valley SHRM Annual Conference, October 5-6, 2012, Bethlehem, Pennsylvania

q. Speaker, "Time to Go Back to School – Updating Your Employee Handbook" and "The ABCs of the FMLA and ADA." Association of Legal Administrators National Conference, May 24-25, 2011, Orlando, Florida (#1 Rated Speaker at Conference)

r. Speaker, "Get Ready to Hire Again" and "Diversity and the Law," Association of Legal Administrators National Conference, May 4-5, 2012, Boston, Massachusetts (#1 Rated Speaker at Conference)

mailto:[email protected]

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Performance Appraisals in Law Firms: Yes, They Do...

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