Performance reviews, or employee evaluations, are an important tool for supervisors and managers to strengthen employees’ performance and acknowledge high achievers. No matter how formal, and regardless of the format, a review of this kind is the process of determining how well an employee is doing their job, the criteria for future performance, and mutual expectations for performance.

Employee performance reviews also ensure proper documentation regarding employee performance. With solid, objective documentation in place, an organization will find it easier to justify employment decisions (e.g., to discipline or discharge an underperforming employee, deny unemployment claims, etc.), and/or defend its actions in a court of law.

For the supervisor, performance reviews provide an opportunity to provide important feedback to the employee. It can also be a forum for the supervisor to communicate specific job expectations and standards and verify employee understanding. For the employee, it is an opportunity to gauge their performance and evaluate goals.

Ongoing Reviews
Performance reviews should not be a once-a-year event; nor should they be limited to a written document. A good supervisor regularly communicates with employees on how the job should be performed (with input from the employee as well), recognizes a job well done, and coaches employees on how to improve job performance.

Over the next few weeks, we’ll be providing important information on the steps a supervisor can take to ensure an effective review. For example, gathering important information on how the job is performed, having regular communication with employees, documenting specific instances of employee behavior, formal reviews, procedures and the importance of consistency. This week’s tips are on gathering important information and the need for regular communication.

Gather information on how a job is to be performed:
Reviewing the job description is a good starting point. Does it accurately reflect the job responsibilities for this employee? Discuss the job functions with the employee—is the employee performing other tasks that are not reflected on the job description? Has the manner in which tasks are performed or the equipment to be used changed? Make sure the employee understands your expectations for good performance, and make sure that you understand whether those expectations are realistic.

Have regular communications with employees:
Whether an employee performs a job well or their performance is deficient, the employee should be recognized/counseled as soon as possible. To encourage good work habits, praise should be immediate and clear. Timely discussions to discourage poor work habits or behavior are much more effective than when these discussions are delayed. Supervisors should always be aware of difficulties employees may be facing in performing the job, or whether changes can be made to improve productivity and morale. Supervisors who regularly discuss work tasks with employees may find invaluable insight into ways to improve productivity or efficiency.

Check in with us next week for additional best practices and tips on effective performance reviews.

In answering a question of first impression, the California Court of Appeals (2^nd District) has given weight to the affirmative defense of manageability in California Private Attorneys General Act (PAGA) litigation. 

Manageability has long been a watchword for employers defending against PAGA litigation. In the case Wesson v. Staples the Office Superstore, LLC the Court found that inherent authority lies with the courts “to ensure that a PAGA claim will be manageable at trial – including the power to strike the claim, if necessary….”

This is an important ruling because the average PAGA case (if there is such an animal) can involve a significant number of employees claiming penalties for highly individualized issues (e.g., failure to receive meal and rest periods, overtime or compensation for working off-the-clock). Given that a single PAGA plaintiff may file a lawsuit on behalf of themselves and hundreds, if not thousands, of other aggrieved employees – without the burden of proving their own claim(s) are like the “others” they represent – manageability is a real issue. A case involving 500 or even 1,000 aggrieved employees could cause a case to drag on and on with witnesses for both sides testifying for days on end to either the “sameness” or “uniqueness” of the specific job classification at issue. All to give weight to the PAGA plaintiff’s claim(s) that all (or at least some) were similarly aggrieved. This was Wesson’s downfall.[i]

Unable to provide the lower court with a trial plan showing his PAGA action would be manageable at trial, the court concluded that the PAGA action could not be managed and found in favor of defendant Staples. The Court of Appeal affirmed the lower court’s ability to make such a ruling.[ii]

The Wesson case is a huge step forward from a PAGA litigation defense standpoint. It highlights the court’s unique ability to rule on the manageability of PAGA claims in a manner “not inconsistent with PAGA’s procedures and objectives, or with applicable precedent.”