Tag Archives: performance evaluations

Breaking Through The Barrier Of Hardnosed Workers, Part 4

Winning Them Over
In Part 3 of this series, safety officer Ken Malcolm talked about the importance of building trust between hardnosers and those who try to change them. To this, Malcolm adds respect.

“Give them [hardnosers] respect,” he says, “and problems go away. They might not like you, but when you handle people accordingly, someone is always watching, and that tough but fair method gets you respect.”

Trust and respect form the pivot point that directs difficult employees away from dysfunction, toward responsibility. Hardnosed workers will never trust or respect you more than when you demonstrate to them that you have their best interest at heart.

You do this when you create intentionally interpersonal safety training to meet the intensely interpersonal weaknesses of workers.

Intentionally Interpersonal Safety Training
Not all worker resistance is of the severe magnitude experienced by the desperate general manager described in Part 1. But to any manager who suddenly realizes that “good employees” in his organization are on the verge of spinning into the Cycle of Rejection (see Part 2), the situation can seem as serious.

Such was the panicky attitude of a global manufacturing company's operations excellence director when he realized that his plants' safety representatives, were, for no apparent reason, beginning to resist his carefully crafted 5-year safety excellence plan. Midway through the plan, he found that the ability of his safety representatives to engage employees — younger employees in particular — was less than he initially believed.

The harder he pushed them to engage employees, the more they resisted. Sound familiar? The interpersonal skills of his representatives required improving in a manner that did not risk further alienating them, so he called the author for help.

Since hazard recognition was the next focus of the 5-year plan, it was decided to integrate relational skill development into the safety representative's hazard recognition training program. An emphasis on reaching younger workers was included. One of the company's values, integrity, served as the drumbeat.

The human development goal was to help the representatives understand the difference between the preferred behavioral tendencies of older workers, such as themselves, and the preference of the plants' predominately younger workers. An easy four-part behavior profile was incorporated to help the participants understand the difference. From earlier articles in this series, you may recognize this goal as helping the hardnoser understand why people do what they do.

The safety management goal was to teach the representatives a simple 1-2-3 hazard recognition process that could be persuasively communicated to employees.

The resulting outline for the 8-hour training course delivered by this author is as follows.

Course Achieving Safety Integrity through Hazard Recognition
Length 8 hours
Format Live presentation; interactive workshop
Section 1 Hazard Recognition: A Matter Of Integrity
Participants are asked to think of hazard recognition as a matter of integrity, as a way of “doing the right thing.”
Section 2 Clearing the Value Path to Hazard Recognition
Participants learn about a “perfect storm” of negative social influences that hinder employee “buy-in” to hazard recognition. How to turn these negatives into positives is taught.
Section 3 Capitalizing On Communication Desires to Jump-Start Haz Rec
Participants learn a behavioral approach to hazard communication — capitalizing on the communication craving of Generations X and Y — in order to achieve employee engagement in hazard recognition.
Section 4 Making Haz Rec Work Simply
Participants learn a simple 3-step process for Haz Rec — observe, interpret, apply — that engages everyone in the routine practice of hazard recognition. A 3-question mechanism for gaining accountability is taught.
Section 5 Using Behavior Recognition Skills to Build Haz Rec Effectiveness
Participants learn the strengths and weaknesses of each behavior type so that they may better recognize how employees allow hazards development and loss to occur. Correcting unacceptable behaviors before an incident happens is taught.

Learning Objectives

  1. A review of the company value of integrity in relation to hazard recognition
  2. A simple effective 3-step method of hazard recognition
  3. A knowledge of the participant's own core behavior tendencies
  4. A method to accurately recognize (read) the behavior tendencies of others
  5. An understanding of how to 'sell' hazard recognition to others via persuasive communication skills targeted to the behavior tendencies of others
  6. A strategy for maximizing hazard recognition through the networking behavior of Gen X and Y

The effectiveness of the intentionally interpersonal approach to safety training was immediately evident in the participants' feedback. Hardnosed safety representatives are not easily fooled. Most have seen a dozen lackluster varieties of the “safety flavor” of the month.

“He left no stone unturned,” said one. Grasping the dual nature of the training, another said, “Not only did I learn about safety recognition but I also learned more about my own personality and the personality of coworkers.” [The course emphasized behavior, but the common use of “personality” is close enough.]

Still another of the 75 participants said, “It wasn't what I expected.” No, it isn't, which is the point. It met felt needs, unlike other safety training. Added the participant, “I liked the straight talk.”

Most telling is the participant who stated that she will “use these ideas at work and at home.” It is a reminder that the greatest needs are life skills. Another participant said that he would use the course material to “make personal changes.”

Intentional Results
Success is never guaranteed. But the intentionally interpersonal safety training advocated in this article has proved successful in every work environment from which the T-JTA data that defines a hardnosed worker was extracted.

In addition to improving the measures of traditional safety management — recordables, lost times, observations — several measures of human resource management effectiveness were improved, including personnel turnover rate, workers' compensation claim rate and various measures of employee engagement or attachment.

One large maritime company saved over $20 million during a 2-year period as the author and his colleagues worked with them to conduct a company-wide interpersonal safety training program.

An organization committed to breaking down the barrier presented by hardnosers may reap the unimaginable “better results” spoken about by John Bennett in Part 3. But to do so requires a shift in management perspective — from a reactive posture in which the hardnoser is viewed as an object to be conquered to a proactive policy of ministering to the hardnoser's needs.

Below is the story of one company that made this commitment. It's the company whose desperate general manager initially called the author in Part 1. Remember him? He is the one who thought that his supervisors were acting like troubled kids. And he was right. So was his inclination to react in the right way.

Enabling A Safe And Profitable Transition
One beneficiary of the blended safety training approach was Chotin Carriers, Inc., now a part of the Kirby Corporation. Kirby's impending buy-out of Chotin, a small company of 120 employees, only added to the human resource and safety management challenges faced by Chotin's general operations manager, Arnie Rothstein.

Chotin's overall personnel turnover rates for the years previous to the buy-out were respectively 47%, 40%, 44%, 35% and 41%. Rothstein conservatively estimated that each employee turnover cost Chotin a minimum of $4,300, or an average annual turnover cost of $349,760.

Starting in Chotin's buy-out year, the author administered a series of training programs that addressed both the safety need of Chotin and its human resource development challenges. The result was that Chotin's turnover rates dropped to 20.3% and 2% respectively over a two-year period, saving Chotin thousands of dollars in personnel turnover costs.

During the same period of time, Chotin's safety performance was also improved. The company's total injury index rate (per 200,000 man-hours) dropped from 8.0 to 4.32, a 46% reduction. With an estimated cost of over $30,000 per lost time back injury, special emphasis was placed on reducing lost time injuries. The result was a 64% reduction in Chotin's lost time injury frequency rate.

Better than these results to Rothstein was the sweet aroma of employee cooperation, evidenced by one of the company's reformed hardnosers, who said, “I've learned more from this training than I've learned in all the other training put together.”

Why Bother?
It is convenient to be like the skeptical Cleveland-area businessman in Part 3 who views everything in this presentation as silly “social work.” But the evidence presented here suggests that you can not pretend that a sub-culture of hardnosed workers does not exist.

Take it from an expert in destructive behaviors. If there is one thing that delights a hardnoser — that encourages his resistance — it is knowing that management will ignore him, allowing him to run amok. Such tolerance provides him with a complete sense of control. It justifies his retreat into emotional isolationism, disengagement, and dysfunction.

Ignorance by management is not bliss. There is a price to pay for such folly.

Massive amounts of money are spent on strategies that, at best, merely limit the ongoing damage done by change-resistant employees.

No amount of pre-employment screening can solve the problem. No human resource policy, employee management strategy, or performance evaluation criteria can deter it.

Nothing short of a purposeful, committed effort to provide hardnosers a path to healthy personal development will decrease their resistant nature. Safety is the open door to that end.

Bibliography

“Focus On Teamwork, Attitude Improves Quality And Safety.” The Waterways Journal. April 25, 1994: 41-44

Newton, Ron. No Jerks On The Job. Irving, TX. PenlandScott Publishers, 2010.

Riddle, Glenden P. An Evaluation Of The Effectiveness Of Stress Camping Through The Use Of The Taylor-Johnson Temperament Analysis Exam. Research Project. Dallas Theological Seminary, December 1978.

Taylor, Robert. Taylor-Johnson Temperament Analysis Manual. Thousand Oaks: Psychological Publications, Inc., 1992.

Breaking Through The Barrier Of Hardnosed Workers, Part 2

Righting The Ship Wrongly
For torturous purposes, let’s say that you are an executive manager who has inherited the type of hardnosed workforce described in Part 1 of this series.Your laborers are largely emotionally repressed, unsympathetic, narcissistic, uncontrollable and prone to permanently go AWOL. Ditto for your supervisors and managers. Collectively, your work force constitutes a change-resistant barrier that thwarts every attempt at achieving continuous improvement.

As risk strategist Greg Pena suggests, you set about to correct the obstructionist nature of your workforce. Otherwise, your best management efforts are “doomed from the start.”

Which quick-action strategy do you choose?

  1. Create and enforce more rules designed to secure better worker behavior?
  2. Implement a system of rewards and awards designed to reinforce good behavior?
  3. Pursue an aggressive program of quality assurance that requires strict behavioral compliance and reporting?
  4. Institute a behavior observation program that results in establishment of improved work procedures and oversight?

This is not a trick question.

Damage Control

To begin, you might start by quickly doing what others have traditionally done in similar situations.

  1. Assess where the most “damage” is being done by the most resistant workers.
  2. Speed headlong in pursuit of the holy grail of gaining control of those workers.

You do this because you’ve been taught that lack of control is the foundational cause of rebellious behavior. Control is considered a weapon. To heck with human resource management laws and employee management policies. They are slow, ineffective weapons of change. You need something that works quickly.

So to gain instant influence, you deploy whichever of the quick-action strategies (above, a–d) that you think will give you the fastest results. Each approach promises control; all are known quantities. Together, they constitute the bulk of management’s current wisdom in wrestling control from hardnosers.

The strategies are as follows.

a. Control By Directive — create and enforce more rules.
This is an old tactic closely associated with authoritarian or directive leadership style — it is dependent upon the strict use of the chain-of-command for enforcement. The strategy involves using rules and regulations to achieve (by demand) behavior compliance — control. It is the attempt to regulate and regiment behavior.

b. Control By Incentive — implement a system of rewards and awards.
This is a popular method of gaining control because it seems to “make the most sense” when it comes to worker motivation. It is based upon the belief that workers will be motivated to better behavior if they receive objective rewards, incentives or other strokes of positive reinforcement. Typically these take the form of safety awards, cash rewards or financial incentives that depend on the utilization of performance evaluations, merit ratings, or periodic reviews.

c. Control By Quality — pursue an aggressive program of quality assurance.
This is an old but evolving strategy, currently masquerading as the GRC (Governance, Risk & Compliance) movement. It promises the possibility of simultaneously achieving quality assurance, risk control, regulatory compliance, and behavioral control — with a dash of ethics, integrity, and maturity thrown in — if only we pursue the perfect quality assurance processes. This strategy started as the ISO quality certification process in which rigid paperwork and reporting processes are utilized by managers as an accountability tool.

d. Control By Observation — institute a behavior observation program.

This is a relatively new approach to gaining control of worker behavior. It is known by its popular name, behavior-based safety. In this approach, workers are trained to make intense and frequent observations of common work tasks in order that they might consult together and develop better methods for carrying out the work task. Workers are also taught the basics of how to communicate with each other when feedback is given on performance of work tasks. They are typically required to submit observational reports to authorities.

You don’t need to look hard to find assistance in whichever line of attack you choose. Professional pundits and practitioners of each stratagem are plentiful. So you select a plan. And it initially appears to work.

But its effectiveness in providing you anything other than short-term victory is sadly wasteful — your plan does not consider the characteristics of hardnosed behavior described in Part 1 of this series. None of the traditional control strategies do.

Eventually, you join the ranks of the frustrated transportation manager (Part 1) who implemented a safety training observation program, improved his operational policies, and led his organization in the ISO 9000 certification process — all to little avail. He still couldn’t control his hardnosers.

Changing the emotionally insular nature of rejection-prone people is hard. But as the manager stated, “The alternative, letting them continue to drag our company down, is not an option.”

Rejection On Demand
The fundamental mistake made by a majority of managers is assuming that control is the main issue, that control reduces resistance. And while control certainly occupies a high priority, the real issue is how it is obtained and why it is necessary to sustain it.

The tendency is to forget the lesson learned by all authorities. Any attempt to gain and maintain control of people in the wrong way ultimately results in the rejection of the authority.

Historian Page Smith states it this way. “The whole course of history indicates that one of the most potent bases of common action is a common sense of unjust subordination.”

Unjust. Fair or not, that’s how the common hardnoser views your attempt to gain control of him when you employ any of the well-intentioned strategies listed above. Setting aside the perception of justice, the hardnoser makes a valid point. Many times management demonstrates that it doesn’t know how to gain control, nor bother to explain why it is necessary.

What? Is Not The Question
Tom Slattery, Environmental Health and Safety Manager at POET Plant Management, pulls no punches in holding management accountable. “The way management and safety people talk to and treat the workforce,” he says, “is largely responsible for the ‘bad attitudes’ in the workforce.”

Slattery cites instances in which management says it wants one thing yet subtly rewards the opposite, essentially abusing its control. Placing himself in the mix, he says, “We do not follow through on promises, ask for true employee participation, nor explain the ‘why’ behind policies.”

In the realm of change-resistance, telling someone what to do and how to do it without telling them why they are doing it — why it is to their benefit to do it — is a cardinal sin. As Slattery emphasizes, telling them poorly adds fuel to the fire. It is the equivalent of assuming the listener has no needs other than the need to obey the management. Part 3 of this series explores the depth of the disdain created by this assumption.

Any child knows that asking an uncaring parent the why question (in a response to a command) almost always solicits the brusque answer, “Because I said so.” Yep, that really works.

Ignoring the need of workers to know why they must relinquish autonomy in order to follow the lead of management will provoke resistance from even-tempered people, much less needy hardnosers. Yet historically, that’s what management has done.

In the attempt to gain control of hardnosers, we’ve employed a lot of ‘what to do’ and ‘how to do it’ tactics without first considering the felt needs of the worker. Management asks for the rejection it anticipates.

As a result, a Cycle of Rejection develops. Most organizations that spawn hardnosers are guilty of entering this 6-step cycle. As illustrated below, the black colored steps represent management; red represents workers.

The 6 R’s Leading To Rejection

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Frequently the cycle of management missteps — the six R’s — that reinforce an ever-increasing change-resistant work force is as follows. If the object is control, this is how not to get it.

Revelation — Often using poor and impersonal communication, management tries to educate the worker with bits and pieces of the performance puzzle, most often “what we want you to do” and “how we want you to do it.” These are typically the minimum requirements of compliance — the policies, practices, or procedures that the worker is expected to obey/follow.

Response — The worker responds negatively to poor communication and perceived command-and-control tactics — they remain largely unresponsive to performance expectations. The worker equates poor communication with perceived neglect of both his real and felt needs. He begins to develop an attitude of skepticism/pessimism towards management.

Rationalization — Based upon the worker’s non-response, management perceives a resistance in the worker. Rationalizing that the only way to accomplish its desired performance goals is to use more direct commands, they resort to directive leadership methods designed to seize control of the sources of resistance and to force worker compliance.

Regimentation — Upon rationalizing that the worker will only respond to authoritative command structure, managers put forth a regimented series of operational rules and regulations — more specifics about what to do and how to do it — designed to force the worker to shape up (comply).

Resistance — The worker resists management even further, thinking that management is overbearing and taking away his ability to conduct his job as he sees fit. The process of addressing performance management through poor communication skills and mistaken tactics results in an increasingly change-resistant hardnosed worker.

Repeat — Management redoubles its effort to control the worker without rethinking its strategy. Nor does it stop to analyze the nature of the resistant worker and his felt needs. Repeated failure to do so leads the worker to forthrightly reject any and all attempts by management to seize control. To the worker, management becomes an unjust usurper.

Management’s inclination to simultaneously consider the steps of Rationalization and Regimentation are why they appear back-to-back in the cycle. As management becomes more entrenched, determined to win the control war, the gap between the two steps narrows. It becomes easier to rationalize that more regimentation is needed.

Duck & Cover
What the Cycle of Rejection illustrates is the futility of thinking that command will result in the control of hardnosers. Quite the opposite. But while it’s folly to follow this path of thinking, there is an even more damaging option to choose: doing nothing.

An operations manager whose supervisors had long been on the road to rebellion had this exact strategy in mind — do nothing — when he sheepishly asked the author, “You aren’t going to stir the pot, are you?”

The manager was worried that a few forthright words from the author’s keynote address to the supervisors would enflame the emotions that lay, he thought, comfortably submerged below the thin surface of civility. Yet his boss, the business owner, wanted a permanent solution to his hardnosers’ resistance. He wanted to take back control of his workforce. But no one knew how, much less why. Part 3 of this series will show you both.

Yes, the pot will be stirred.

Bibliography

“Focus On Teamwork, Attitude Improves Quality And Safety.” The Waterways Journal. April 25, 1994: 41-44

Newton, Ron. No Jerks On The Job. Irving, TX. PenlandScott Publishers, 2010.

Riddle, Glenden P. An Evaluation Of The Effectiveness Of Stress Camping Through The Use Of The Taylor-Johnson Temperament Analysis Exam. Research Project. Dallas Theological Seminary, December 1978.

Taylor, Robert. Taylor-Johnson Temperament Analysis Manual. Thousand Oaks: Psychological Publications, Inc., 1992.

Performance Evaluations Without Pain … And Without Lawsuits

As the current business culture evolves into one riddled with legal battles and threats of lawsuits coming from discharged employees, many managers and supervisors feel cornered when addressing employee performance evaluations. Even those employers who follow stringent documentation guidelines often feel pressured into keeping unproductive employees in their positions or giving ambiguous performance feedback, due to their fear of employees taking legal action against the company.

Lawsuits charging discrimination typically are a result of negative evaluations or adverse employment actions. Much to their leaders’ dismay, the employees they fired for valid reasons can win such cases thanks in part to their very own performance evaluation procedures. Using subjective performance standards, failing to effectively address performance problems and not clearly warning employees about the consequences of unsatisfactory performance are the three most common reasons why jurors award damages and appeals courts uphold those judgments. While employers do have the right to insist on quality and productivity from every employee, they must also make legally defensible decisions when it’s time to reprimand or terminate an employee.

For any viable evaluation and disciplinary system to work fairly, evaluators must have proper qualifications and training. The more specific their evaluation procedure, the less likely supervisors are to make a costly legal error. Therefore, employers should supply managers with specific guidelines for acceptable supervisory actions. Additionally, companies should build in a level of higher authority for senior management when they must make close judgment calls, analyze unique problems, or terminate an employee for which the prior documentation is less complete.

Good documentation of evaluations and disciplinary action is critically important, as it provides credible evidence to help verify whether an employee has received prior notice concerning a particular rule or deviation from acceptable job performance. It also provides a record of whether an employee has previously been disciplined and, if so, the appropriate form of discipline for subsequent misconduct. In addition, it creates a vehicle for examining precedents when one employee engages in the same or similar conduct that has resulted in discipline of other employees.

When designing a performance appraisal process, managers must be careful to appraise employees based on job-related criteria and maintain adequate documentation. Develop a consistent appraisal process for all company employees. Any deviation from these objectives could result in costly legal battles.

Managers and supervisors can take several concrete steps to ensure consistency, objectivity, accuracy, and fairness throughout the performance appraisal process. Use the following guidelines to manage employees within legal limits, without paralysis.

1. Clearly Communicate Expectations. Managers must consistently communicate standards or expectations to employees and clearly identify each aspect of the required performance. If an employee fails to meet expectations, address the deficiency immediately (or as soon as reasonably practical) and specify where the employee’s performance requires improvement. When employees don’t know their assessment criteria, they can win a legal battle by simply stating, “I didn’t know what was expected of me.” Be sure to specify objectively measurable performance, such as quality, quantity, and timeliness of work, as well as important soft skills, such as teamwork, initiative, judgment, integrity, and leadership.

2. Perform Candid Appraisals. Rather than let a fear of lawsuits affect your ability to conduct performance ratings, address performance issues consistently for all employees on a timely basis. Be accurate and objective in your performance ratings, and remember to always rate poor performance as well as good performance. When you fail to point out poor performance, the problem continues, as employees cannot correct problems they are unaware of. Additionally, failure to document poor performance is legally risky should the employee later be discharged and sue for wrongful (or retaliatory) termination. Consistently addressing issues of concern with employees defends against the “I didn’t know I wasn’t meeting performance expectations” claim.

3. Maintain Objectivity At All Times. Focus the performance evaluations on objective job-related criteria. Examples of objective criteria that courts have upheld include quantity, quality, or timeliness of work and specifically articulated expectations for interpersonal skills, teamwork, exercise of judgment, and displays of initiative. You can establish objective expectations even with subjective standards when you articulate what you consider acceptable behavior. For example, you may say, “You will exercise better judgment if you come to me early and let me know you can’t meet a deadline so that I can help you prioritize your workload.”

4. Stick To Job-Based Criteria. Always relate the appraisal to the employee’s particular job. If an item on the evaluation form is not relevant to an employee, indicate “not applicable” in the appropriate space. Also be sure to consider the full rating period. Avoid the tendency to let recent performance events cloud what may have happened months earlier. Finally, compare the employee’s performance to a norm or performance standard rather than the performance of other employees.

5. Record And Memorialize. Put all evaluations in writing and document any verbal feedback made during the meeting. Keep the language in written proposals simple and as easy to understand as possible.

6. Be Specific. Review appraisals to ensure that both high and low ratings have sufficient documentation and anecdotal information that details what the employee did or did not do to earn the rating. Avoid vague or descriptive personal criteria that others could misinterpret.

7. Address Performance Problems Promptly. Discuss and/or deal with performance problems at the time they occur. If the employee’s performance is unsatisfactory, immediately counsel the employee on deficiencies and suggest concrete ways to improve performance. The courts may question your motive in a poor performance discharge if the incident prompting the discharge occurred substantially prior to the time of the discharge.

8. Specify the Consequences Of Non-Performance. Clearly specify a final warning on the performance appraisal if the employee’s performance is so poor that a demotion, change in assignment, or discharge may occur. This will help defend against the single most common legal deficiency in the performance management process: the employee’s truthful claim that “I didn’t know this adverse action would occur if I didn’t improve or correct my performance.” Employees routinely win lawsuits with such a claim because supervisors often don’t like to give negative feedback due to concerns about defensive confrontations, a desire not to hurt a likeable employee’s feelings, or worst of all, the fear of drawing a lawsuit that alleges discrimination or harassment.

9. Maintain Consistency. Be consistent with performance appraisals and any corresponding pay adjustments. Document poor performance if it is a basis to delay or deny a pay adjustment just as you would document good performance to substantiate a pay raise. Inconsistency will reflect poorly in any subsequent legal proceeding, especially when the employee claims that he or she was singled out for negative action. Consistency further enhances your ability to defend against discrimination claims, as it demonstrates that the needs of the particular job consistently required adherence to concrete, well-articulated performance expectations, and that all similarly situated employees are held to the same standards.

10. Plan Your Documentation. Contrary to popular belief, poor documentation techniques actually increase your chances of liability in a lawsuit. Avoid making any notes on appraisal forms that the courts could view as discriminatory or that reflect a “mixed motive.” Avoid contrived or pre-textual statements such as “the chemistry isn’t right.” Also, minimize your use of labels, such as “self starter,” unless you tie it to a measurable performance standard, in this case “initiative.” When in doubt, have a jury who doesn’t know you or the employee review the appraisal. Can they misinterpret it? Above all else, never backdate appraisals and never attempt to document something that did not occur. Always document events as they occur to assure that your memory is fresh and your examples are relevant.

11. Be Careful When Referring To Job Protected Leave In Performance Evaluations. Front-line leaders often don’t realize that comments they make on performance evaluations can come back to haunt them. That’s especially true when those comments relate to absences that are covered by job-protected leave, such as the Family & Medical Leave Act (FMLA). Several recent FMLA cases have concluded that commenting upon an employee’s absence due to authorized FMLA leave is the legal equivalent of interfering with the right to take such leave, giving rise to substantial damages against the employers.

In Goelzer v. Sheboygan County, An Administrative Assistant got consistently good performance evaluations for 20 years. She took FMLA leave for her own serious health condition and to care for her ill mother. On her performance appraisal, her supervisor wrote, “[Y]ou were out of the office having eye surgery. In the past two years, using sick leave and vacation, you were out of the office 113 days. As the only support person in the office, this has presented challenges in the functionality and duties associated with the office.” When she was terminated on performance grounds, she sued. A Federal Appeals Court concluded that Goelzer presented compelling evidence for a jury to believe that she was fired for taking FMLA leave. The Court emphasized the supervisor’s evaluation language, which expressed frustration with her use of FMLA leave, the total absence of documentation supporting any concern with her deficient skill set, and her consistent good performance ratings prior to her FMLA leave.

Employers cannot interfere with or discriminate against an employee who exercises FMLA rights. Taking FMLA or other job-protected leave does not insulate an employee from performance-based adverse actions. But, in order to effectively establish that the adverse action is due to performance deficiencies and not the exercise of FMLA rights, the facts must support and document an appropriate, job-related and non-discriminatory explanation.

When you know, understand, and implement the criteria for lawful performance management, you enable your company to operate at peak efficiency while you stay within specific legal parameters. The more proactive steps you take to reduce your chances of a wrongful termination lawsuit, the more successful and lawful your company becomes.