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On a Scale of 1 Through 5, Please Rate Your Performance in the Following Categories…. On a Scale of 1 Through 5, Please Rate Your Performance in the Following Categories….

On a Scale of 1 Through 5, Please Rate Your Performance in the Following Categories….

Like most employers, you probably recently participated in the time consuming, and often dreaded, management process—preparing and delivering your employees’ annual performance reviews.

If you found this process comfortable and easy, even bordering on enjoyable, you either hire only those employees who consistently display an exceptional work ethic, surpassed only by their ability to exceed your expectations, or you have a well-established employee performance evaluation system in place. If this is you, feel free to stop reading here and go on about planning for and enjoying the upcoming holiday season!

In an effort to help the rest of you start the quickly approaching new year off on the right foot, this article discusses some effective employee performance and behavior documentation that will make your management life easier—both in terms of annual reviews and in day-to-day employee performance evaluation.

Document Employee Behavior and/or Performance

First and foremost, there is no such thing as too much documentation regarding employee behavior and/or performance. Documenting employee behavior has many benefits, especially in terms of employee performance reviews (annual or otherwise) and disciplinary actions.

From a disciplinary standpoint, most states are still “employment at will” states, which means either the employer or the employee can terminate the employment relationship at any time, with or without cause or reason.1 Proper and sufficient documentation regarding employee performance and/or “on duty” conduct provides an employer with important support for decisions regarding disciplinary actions, especially where termination of employment is at issue. This is because—notwithstanding an employee’s at-will status—claims by employees of unlawful termination are on the rise, and documentary back-up is a critical first line of defense against such claims.

In terms of performance reviews, proper and sufficient documentation regarding employee performance is essential to an effective review process. It is a critical tool for promoting employee growth and maturity within the organization.

What is “proper and sufficient documentation” you ask? It will include a logical and consistently applied set of standardized forms to be used by management when documenting employee performance and/or conduct. Both exemplary and insufficient performance and/or conduct displayed by an employee should be documented and retained in the employee’s personnel file. In each instance, the documentation must include basic information: the date, the writer’s name and title, and the employee’s name.

While it is a common practice for many firms to utilize “checkboxes” on performance review forms/disciplinary action sheets, a better practice is to replace the checkbox format with an empty space sufficient for a supervisor to provide a specific written explanation of the performance or behavior (or add such a space to supplement the “checked box”). Such forms should include an additional space in which to provide a specific, written performance improvement plan. The final section of these forms should include a description of the specific consequences for failure to correct the inadequate behavior.

“Eddie Employee”

In presenting some examples, I introduce to you, “Eddie Employee.” Eddie has his good days and his bad days—in other words, he is your typical employee.
Documenting Negative Employee Behavior:
Insufficient documentation regarding these instances would be the following: Sufficient documentation both for disciplinary actions and performance reviews would be the following:
Green“Post It” Note stuck in Eddie’s file stating “Late to work several times this month.”
No employee name, dates, or identification of who wrote the note and no identification of to which month the note referred.
Eddie Employee:
Jan. 5, 2017: 15 minutes late for work Reason given: “traffic”
Signed: Eileen Employer
Acknowledged: Eddie Employee
An after the fact memo containing a timeworn recollection of a conversation the employer had (or thinks she had) with Eddie sometime in the spring.  
Eddie Employee:
May 7, 2017: 20 minutes late for work  Reason given: “alarm didn’t work”
Signed: Eileen Employer
Acknowledged: Eddie Employee
Yellow note paper stuck in Eddie’s file stating “Out of uniform AGAIN!!”
Again no identifying data included.
Eddie Employee:
Sept. 16, 2017: Eddie showed up for work out of uniform. Sent home to change resulting in his being 45 minutes late for his shift.
Signed: Eileen Employer
Acknowledged: Eddie Employee
Documenting Positive Employee Behavior:
Insufficient documentation regarding these instances would be the following: Sufficient documentation both for disciplinary actions and performance reviews would be the following:
July 1, 2010: Client called about Eddie. Good job. Eddie Employee:
July 1, 2010: Connie Client called complimenting Eddie’s recommendation re: ABC project. Recommendation resulted in 30% savings in production costs to client and 25% increase in customer contracts with us.
Signed: Eileen Employer
Acknowledged: Eddie Employee
Clap on the shoulder with a verbal “at-a-boy” or no record of laudatory behavior at all. Eddie Employee:
Oct. 15, 2010: Eddie developed new online filing program resulting in 10% decrease in paper usage.
Signed: Eileen Employer
Acknowledged: Eddie Employee

Clearly, if Eddie’s issue ultimately requires disciplinary action, an employer utilizing the proper documentation, as provided in the above examples, has sufficient detail (including Eddie’s personal acknowledgement) at his or her fingertips with which to draft a formal disciplinary action sheet, including a proper performance improvement plan with appropriate consequences for non-compliance. Additionally, when it comes time to prepare Eddie’s performance evaluation, the employer has detailed chronological information from which to complete the forms and provide helpful feedback. Conversely, an employer with deficient documentation will find it more difficult to reprimand Eddie if the need arises and is left with only his or her memory from which to recall the year’s performance come review time.

Sufficient documentation is often the deciding factor in determining the type of discipline available to the employer and in determining whether an employee should receive a pay increase or promotion (or in some cases, a demotion). Without adequate documentation, even if a demotion or termination should be the action taken, it will be ill-advised until such time as proper documentation is gathered by the employer in order to protect itself from potential harassment, discrimination, or other employee claims.

Further, as noted above, consistent and contemporaneous documentation of employees’ performance and/or behavior throughout the year makes the completion of annual performance reviews a breeze, perhaps even something to which you can look forward (or at least something you don’t dread).

If you would like more information on proper documentation practices or assistance in developing a standardized performance evaluation form, please contact Maureen Maffei or another member of our Labor, Employment and Immigration Group. We regularly work with our clients to develop best practices for their businesses and welcome the opportunity to assist you.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.

1Obviously there are certain state and federal law exceptions to an employee’s at-will status, such as the statutory landscape that prohibits employment termination based on factors such as race or color, ethnicity or national origin, sex or gender, religion or creed, disability or medical condition, and age.
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