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Life of a Law Student, University of Houston Law Center

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The Pantomime of Performance Evaluation, illustrated by an Employment Lawyer’s Suit Against Former Firm

For many employees, performance evaluations are a periodic decent into the surreal, a formalized pantomime of management clothed in the language of euphemism, fraught with subtext. Which, would you predict, is the failing grade among the following descriptors – outstanding, excellent, satisfactory, good, very good, competent? In the world of performance evaluations, competence is the kiss of death, because it is merely competence in a world where excellence is average. As the Dodo said, ‘everybody has won, and all must have prizes.’

The standard advice, summarized by Fred Steingold and Alayna Schroeder’s in The Employer’s Legal Handbook is that:

By putting your evaluations in writing and saving them in the employee’s file, you have a credible history of documented problems you can use if an employee claims the termination was for an illegal reason…. You want to stand ready to rebut any possible claim that you fired an employee for an illegal reason. The best way to do this is to preserve, in written evaluations and other documents, the good reasons you relied on to fire the employee.

Often the reality, as some research has noted

is that most [managers and employees] either hate or ignore the [performance evaluation system] but live with it, breeding a kind of highly destructive organizational cynicism.

Consider the battle of the performance evaluations revealed in the complaint in a suit filed by Gary Green, a former associate in the Los Angeles office of Skadden Arps against his former firm. Green, who cites his own seemingly glowing evaluations in the filing, was fired after writing a negative evaluation of another associate. His own boss considered the evaluation he wrote to be intemperate and to demonstrate poor judgment, justifying his dismissal. Even more interestingly, Green was told his negative evaluation would expose the firm to liability by providing documentation of alleged incompetence that could be used by the client in the matter should they sue the firm for legal malpractice.

So we have a picture of a workplace (practicing employment law no less) where for fear of liability everyone gets good or at least ‘competent’ performance evaluations, including an associate gives a negative evaluation, whereupon he is fired. This does not sound like an effective way to limit liability me, but we’ll see how it shakes out.

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