1 Tossing Formal, Annual Reviews May
Affect Workplace Litigation
By Jay-Anne Casuga
7 Yahoo Suit Highlights Performance
Review Pitfalls
By Genevieve Douglas
Practice Area
briefings
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Tossing Formal, Annual Reviews May Affect
Workplace Litigation
By Jay-Anne Casuga
As some large employers transition
from using formal annual performance evaluations for employees to
more frequent, informal reviews, employment law observers told Bloomberg BNA that the change hypothetically could affect some aspects of
workplace litigation, such as proving
or disproving allegations of discrimination or bringing class claims.
Risa Lieberwitz, professor of labor
and employment law at the Cornell
University School of Industrial and
Labor Relations, told Bloomberg
BNA that the use of performance
reviews that are less uniform might
make it more difficult for employees
to prove commonality, one requirement necessary to certify a class
action under Rule 23 of the Federal
Rules of Civil Procedure.
Offering a different viewpoint,
an Equal Employment Opportunity
Commission spokeswoman observed that Rule 23’s requirements
don’t apply to the EEOC’s ability to
bring class suits under Title VII of
the 1964 Civil Rights Act and other
anti-discrimination laws.
She told Bloomberg BNA that,
hypothetically, if the EEOC were
trying to show that a protected
group had been disproportionately
refused promotions, the lack of uniform performance appraisals could
work in the agency’s favor to show
subjectivity and bias.
Joseph S. Lakis, president of the
Equal Employment Advisory Council (EEAC) in Washington, said the
shift away from annual performance
evaluation management processes
could be a “sword that cuts both
ways.” The EEAC is a nonprofit association that assists employers with
workplace compliance requirements.
If it’s implemented well by an
employer, the maintenance of less
formal and more frequent records
and data to assess and manage
employee performance could help
employers justify and potentially
defend employment decisions that
are later alleged to be discriminatory, he told Bloomberg BNA.
On the flip side, if an employer
fails to maintain those records, it
may prove difficult to defend against
discrimination allegations using
performance-related data, he said.
A Labor Department spokesman
shared a similar perspective, pointing out that even in the absence
of annual performance reviews,
employers — such as federal contractors subject to the jurisdiction
of the Office of Federal Contract
Compliance Programs — need to
document and maintain information on their employment decisions.
When the OFCCP conducts
compliance evaluations of federal
contractors, the agency requests
that information and examines it,
he told Bloomberg BNA.