Per our firm’s practices, we periodically purge files.  Recently, I reviewed a file containing old seminar materials.  In the file were examples of poor employer behavior. 

Years ago I had a client, an owner of a prominent company, tell me that his secretary, who was recovering from back surgery was a horrible employee.  He told me this as she was preparing to return to work after a leave of absence.  She had requested, as an accommodation, a special chair and the opportunity to stand and stretch or walk more frequently than one every couple of hours. 

The owner could not put up with those restrictions and he wanted me to know that she had never been a good secretary.  Get rid of her was his direction. 

Having examined situations like this on numerous occasions, I decided to look at the secretary’s personnel file.  On top was the most recent evaluation.  On a scale from 1 to 5, with five being “excellent” the secretary 21 top scores.  The remaining scores were all 4’s, or “very good.” 

I did not advise firing the employee.  I recommended providing an accommodation and working through whatever problems they had. 

This evaluation demonstrates a serious problem that arises when an employer uses grade inflation on a review.  Assuming the owner was telling me the truth, the secretary was not a competent employee.  However, he gave her top scores.  Was he trying to avoid confrontation?  Was he hoping she would quit before he had to speak with her? 

Assuming the owner was telling me an untruth, the evaluation contradicted him. 

In a lawsuit, neither position is enviable.  Think of it.  What will a jury think if it hears the owner say, “She was a terrible employee” but sees a stellar evaluation?  The jury is likely to think the owner is a liar and he really wants to fire her because she took a leave of absence and wants an accommodation.  The only way the owner wins is if he convinces the jury that he actually lied on the evaluation, which was suppose to be a candid and truthful assessment of the employee’s performance.  That is NOT the argument to present.  That is not the argument the employer will win. 

Most employers do not provide accurate evaluations for one of two reasons:  (1) They are too lazy to put in the time to provide a careful assessment; or (2) they want to avoid confrontation.  Neither reason justifies the employer’s behavior. 

Employees deserve to receive an honest evaluation.  Their livelihood depends on it.  They want to improve and become of greater value.  Thus, it is imperative that an employer provide an honest assessment. 

In addition, an employer wants to avoid lawsuits.  They are avoided with honest assessments, not dishonest silence.  When an employee with high evaluations receives word of a termination what will(s)he think?  The employee will think that someone had it in for him/her.  The employee will think that there is an unlawful reason for the termination.  The employee will find a lawyer and attempt to articulate a claim. 

In the case I described, the employee would have thought, “I am being fired because I have a disability and took a leave of absence.”  That gives rise to a lawsuit — and attorneys’ fees.  That’s a great case for a plaintiff’s lawyer.  Years of dedicated service.  Elderly secretary.  Stellar reviews.  Fired only after she experienced a health problem. 

That is a big money case! 

So what should an employer do?  Be brutally honest.  Tell the employee where the deficiencies are.  Give examples.  Provide training opportunities to improve.  If performance does not improve, then you go to the employee and say, “It’s not working out.” 

And guess what?  The employee doesn’t have to guess why the decision was made.  The employee says, or at least thinks, “I understand.  I have not improved on my performance.”

Now that’s how to avoid a lawsuit.  Be honest.  Be fair.  Be candid.