1 Tossing Formal, Annual Reviews May Affect Workplace Litigation By Jay-Anne Casuga

7 Yahoo Suit Highlights Performance Review Pitfalls By Genevieve Douglas

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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.