Can I eSign West Virginia Employee Appraisal Form

Can i document type e sign employee appraisal form west virginia

employee performance evaluations when used correctly can recognize valuable employees and help employees who need help but used incorrectly can cause some real problems I'm Dan ringer and we'll talk about employee performance evaluations right now on the law works from West Virginia Public Broadcasting closed captioning for the law works is made possible by a grant from the Monongalia County Bar Association and by the deets or family foundation people helping people the law works is made possible by the generous support of the West Virginia State Bar the West Virginia association for justice and by alps providing protection and peace of mind for west virginia attorneys in their clients since 1988 how should performance evaluations be used and what are the problems with them my guest is attorney David Morrison David thank you for coming back I think this is your third or maybe fourth time on the show it is employee performance evaluations it seems like a good idea in fact the biggest problem that I hear about them from clients or prospective clients is that they're not performed regularly what aren't they a good thing well then as you know I'm a lawyer and the the typical response from a lawyer is it depends it depends upon how they're used they can be a very effective tool to use in the workplace they can also be the worst nightmare if they're not done properly so it really depends the first time I ran into them as a young kid coming out of college I went into the military and not only was i evaluated but as a brand new second lieutenant I was asked to evaluate other people that was not right because I was only if trained at all minimally trained and that's part of the problem with valuations but what we found out my military experience was that employee evaluations rarely say what they should say whether they're good or bad and that unfortunately has been my experience as a lawyer I represent the employers primarily so I begin involved in reviewing performance reviews both in litigation and private litigation just trying to provide advice to employers and quite often you see the employers do not use them properly the biggest problem you have and I see it over and over and over again is that the supervisor is it wants to be a nice guy and he wants to be a nice guy to the person that he is evaluating and heats the supervisor simply is not honest and doesn't provide a completely candid review of the employees performance they just issue avoidance at the time but you have a written document that then goes into the personnel file that does not reflect the actual performance of the employee and that can be used against the employer later on and litigation and often is the employee that or the written performance evaluation is a different kind of form it seems every place you go but invariably there is some spectrum of performance ranging I suppose from at one end abysmal to at the other end walks on water what's the problem with that why don't you just say it needs help or needs a lot of help or is okay or is outstanding when you try to categorize employees into pre-set categories of bad to good not everybody fits into those categories neatly so to speak and so what I normally recommend is that you have open-ended questions which forces on the form which forces the employer the supervisor to sit down and actually think about what the employee is doing and answer those questions in paragraph form if necessary or in bullet point form however we do they're asked to provide examples of what the employee is doing good or bad and it you are really testing or reviewing the employees performance you're not simply given the opportunity to say good or satisfactory with a checkmark you actually have to sit down and think about it and provide honest feedback let's do some role-playing here mr. Morrison I am the supervisor of supervisors of employees and I am concerned that the people I supervise have time to do their jobs which is to make sure that other people are doing their jobs and you have recommended to us that we have performance evaluations and we've asked you to help design the instrument and you have just told us that you don't want it to be a multiple choice instrument you to be an essay exam and mr. Morris and I appreciate your opinion and your great lawyer we love you to death but we can't afford to do that we've got 150 employees in the amount of time it would take to write a theme which is what you're suggesting about each employee is staggering and impossible no and you've probably heard something like that i'll give you the best of all worlds obviously one person wouldn't be evaluating all 150 employees though you might have a large number of people play and yes and it does take time a good performance review system takes time and the people have to be trained to do it there are other instruments that have the categories and and those are those are okay as long as you have some place on there for the employee and the employer to evaluate the performance that I recommend self evaluations as well where the employee actually sits down and goes through his or her job duties and articulates how he thinks or she thinks they're doing on the job and so employers pick up a lot of information from employees who are being self-critical and I think it it serves a lot of purposes for that but as someone who has represented employees and employers in in just these kinds of situations I would have to tell the employee don't be negatively critical about yourself it's okay to be critical in talking about how wonderful you are but you better not write down anything negative because if you do your boss is going to use that against you that's a concern I'm trying to foster good communications here and you know what I with the self-evaluation you are fostering good communications on the work performance of the employee on the various tasks that he or she has to perform and most employees quite frankly are very honest in the way they review themselves people are yeah that's why the American legal system works is that most people are honest and we rely on that and and it serves several purposes one you get feedback from with the employee thinks how the employee perceives his or her job assuming that the person is honest and again most of them are and there may be a huge difference and so it serves as an opportunity but for the employer to talk about the employees perception of his or her work performance you may need more training there could be lots of things or reasons why a particular piece of work is not as good as what the employee thinks maybe a misunderstanding as to what the job requirement is it could be lots of things but you get your you're fostering feedback from the employee and you're fostering and dialogue between the two and that's when work performance improves I had a situation I actually saw this situation relatively recently there's an employee whom I perceived to be a good employee a hardworking person but I noticed that this employee was not getting the job done as timely and necessarily as thoroughly as I thought should be done and so my question was what's wrong i went to the employee yes are you having trouble getting your work done it's not my employee of somebody else's employee and the answer was yes I am what do you need to make it better and that particular employee didn't know and I suggested would having an assistant make this work better for you and the answer was Oh Lord yes I've been trying to do that but nobody will listen to me and that gave me an opportunity then go around the employee and say you know you might want to look at that because this is a way to cure it and sometimes lawyers do jobs like that and sometimes our help in that area is not encouraged but still that's the kind of thing you see if you can get an employee in their own self-evaluation to say I can't get my job done because I need help right and then the best system is where you have day-to-day feedback on those issues you don't wait for one time of year you sit down with a performance review and fill it out but there's day-to-day feedback that's the absolute best system we're all busy and we get tied up and our various functions and requirements and responsibilities and we don't always do everything that we want to do the evaluation process forces you to do it at least once or twice a year however often your performance review is and I've ever seen it twice in here think that some people have it twice a year you know they do it in the summer and the fin that in the winter but but most employers do it once a year at least forces you to do it once a year if you don't have that day-to-day feedback and you at least are forced to do it once per year so that that's why it's a good thing unfortunately and I've seen it many times many big small to but big organizations that you would think we're regimented to the things happen just bang bang bang exactly on time and exactly the way they should we'll go years without doing proper performance evaluations if they do them all public school systems historically had a great deal of difficulty with that although I think now most of them are doing it somewhat more regularly somewhat better but it was it was studying to me when I would have someone come to me with an employee with a question about their employment and I would say well how have your performance evaluations been and the answer is I haven't had one for the last five years and so if you're going to have them you ought to use them eat you right I mean that almost goes without saying if you're going to have a performance review system you have to use it you have to follow 31 I mean it's it would be bad to have a system that calls for annual reviews and you do them every five years I mean I don't know how I would ever defend that if I'm in trial trying to defend a wrongful discharge case on the basis that someone has said poor performance and they've not been told that they've had poor performance that's a very difficult case to defend what I suppose the real issue is what's the performance what's the purpose of a performance evaluation I can think of several purposes they might be but is there a single theoretical purpose for these things hopefully the purpose of a performance review is too to improve performance it's to give feedback to the employee on how the employee is performing it may be that the employee is doing something absolutely perfectly and you want to Pat them on the back for it and give them feedback that that is what we want or it may be that there are deficiencies and you want to improve performance so so it's the hopefully the idea is to provide information to the employee and the employee back to the employer on what the employee is doing to improve performance overall and that should be the goal but oftentimes the fact is that performance evaluations are completed to get them done and they have no significant standalone value sometimes the purpose of them is to create a record to justify giving somebody you like more money in the form of a pay increase or a bonus and sometimes it's to create a record so that when it comes time to kill that employee in the employment sense to fire them you've got enough documentation that you can say okay I can fire you and here's the reasons why so employment evaluations performed with a motive other than a pure motive doesn't seem like such a good idea to me it well it depends I'll go back to their sins language again the if you have someone who is a poor performer I'm hoping as the lawyer defending you that you have told that person outside of the performance review process but the performance review at least provides you with written documentation of the problems I also recommend that the review that you follow up from a review if you have someone who is having performance issues it's noted in the performance evaluation that you don't it doesn't stop there you then follow up try to find ways to assist the employee to make them better at whatever they're having problems with or if they simply cannot do it then at least you're starting the process toward showing that you've tried to work with them and that's important does an employee have the right to complain that they never told me I was doing it wrong so they can't fire me for doing it that way the rights a legal right no I mean we're in employment at will state in West Virginia what does that mean what that means is that the employer has the right to discharge an employee for no reason at all or any reason at all as long as it's not an illegal reason such as their gender their race and so technically no they don't have the right to be told that they're not performing well I think if you're litigating a case in front of a jury most juries want to think that the employer has treated the employee fairly and one way of being treated fairly is to give them an opportunity to improve in the areas where they're deficient and in some employment an opportunity to improve is required public employment yet frequently yes your supervisor if your supervisor is unhappy with the way you're doing your job is required to come and tell you I'm unhappy with this and either tell you to fix it or in some cases I suppose has an obligation to help you fix it and then evaluate you later that's correct their performance improvement plans that are sometimes required but in most private employment absent a contract giving you a right like that doesn't exist that any most private employment we David said we're in employment at will state that means that you can be terminated any time for any reason or no reason at all the way you get around that is to have a written contract or be the beneficiary of a written contract that a negotiating unit has created for you for example if you're a coal miner there's a you mwa contract if you're a member of a union shop of any sort there's there's usually some kind of written contract that's what that whole process is about but otherwise you don't have any guarantees you're going to be told that you need to change something or should change something or that they want to change something there are no guarantees but it's certainly good management practice to work with employees and try to get them to improve it's very expensive to go through the training process for employees as well and most employers take that into account they would rather have someone improve then discharge that employee and start all over again with somebody else so it really rather work with them and try to get them to improve that's the normal case and the training process even for the simplest jobs the guy who stacks the cans on the shelf the woman who answers the phone at the front desk it takes training and it takes monitoring to make sure that these things are done right and when you've got somebody who's been there for even a little while to go back to zero takes a lot of hours most people don't have any idea the value at a couple of hours of time in training somebody or cleaning up a mess that somebody's made it can be staggering well even the cost of hiring I mean you may have to go through advertising and the initial training the drug testing perhaps depending upon the circumstances there are lots of costs associated with hiring so another problem with performance evaluations is consistency from the same evaluator of numerous employees but also from people different evaluators of the same types of employees yeah you and I'm a rate somebody two different people completely different they may be performing exactly the same function exactly the same way inherent in any evaluation is a subjective view of how that person is doing if you have a system that calls for evaluating someone from 1 to 10 for example and this is perhaps the easiest example to understand I might look at someone's performance as a six and you think that performance is at an eighth level and then when you get down to especially in these economic times with reductions in force that are unfortunately happening often those decisions are made on the basis of performance well you look at somebody who's an eight versus somebody who's a six you're going to keep the eight and lay off the six and then but they might e doing the exact same thing and then it's hard to explain how you can have a distinction between the two of them when you get into a lawsuit it's difficult and even just one evaluator with more than one employee and I when I think of this I always think of what i refer to as the American Idol model the first performer stands up in sings and the judge says that's the best performance you could possibly have done that's the best performance I've heard in this competition the next singer gets up and sings and said you're the best performer that's been on this stage tonight and now you're trying to figure out which one of those did the best job and by the way they sang different songs and their stage president was slightly different but I didn't object to either one so who's the best and there's you can't quantify that it's a subjective system that we try to make objective and then the the most horrifying part is we'll have 12 categories one to ten and you'll be 5 6 4 7 8 10 and then someone will pronounce that your performance on the average is a 7.6 that has no logical meaning it's hard it's very difficult because especially when you get into workforce reductions I've seen a number of them where they just simply look at the numbers and somebody maybe in Pittsburgh or some other state is making these decisions and then look down and I'll say okay we need to lay off seven supervisors and out of the 14 that we have and we're just going to look up and take the we've got this numerical ranking system we're just going to take the bottom seven well you may have different people doing the evaluations and how can you judge a 7.6 versus a 7.2 and how can you really explain that it becomes very difficult how do you do it then d some employers don't do it there are seven players are saying it's just not worth the risk and they're doing away with evaluations all together you really have to structure your evaluation to evaluate the work performance of that particular employee a one-size-fits-all performance measurement tool usually doesn't work across a system you need to have to evaluate figure out what you want to evaluate from that employee whether that employees job responsibilities and evaluate that and your form needs to fit what they do that's the first thing you need to do make sure your form is and because what is satisfactory on one particular job may not be on another and you just this work and you've got to give training to the supervisors they have to understand the importance of the performance evaluation what is trying to be accomplished by it that has to be done so a lot of time needs to go into training and then you need to make sure they're honest and that is so hard when you have your good buddy you go fishing with every Saturday morning that's the person you're evaluating its may be difficult to say he's not doing a good job on something sometimes employers will tell their people you do not become social friends and companions of your subordinates the people that you evaluate the people that work for you and that's a really hard thing to enforce for one very obvious and simple reason most people who get married mary people they have met in school or in the workplace yet we have policies for example thats a married couple can't work for the same employer we are employment rules not laws rules sometime defy reality and that's kind of what we're in here with performance evaluations you and I can't perform can't evaluate somebody the same way to employees with two different jobs can't be evaluated the same way that harken back to the example I gave before in the military when I was there we used exactly the same document to evaluate people who filled out forms and kept track of personnel records and people with authority to launch nuclear weapons you can't have more different jobs than that yeah yet two or three years into your career somebody would say well what was your first performance evaluation and they would both say oh I got a 47 but the four sevens didn't mean anything because they were so different yet decisions were made on the basis of that number and that didn't make any sense of it on top of that then we're in a small state with lots of small communities you know everybody in the community it's hard much more difficult for a supervisor who grew up in that community went to school with everybody in that community to then perform to then be very critical of their good friend that they've grown up with and you can you can say that we don't want you socializing but as a practical matter it just doesn't work in many of our communities well in lieu of having written performance evaluations how do you keep track of your workforce well it is difficult what you need to have whether you have a performance review system or not there needs to be daily interaction with the employees to make sure that they're doing what they should be doing and that you're getting feedback from them I mean there's a lot that employers can learn from employees of the lesson and so there needs to be a lot of give and take a lot of feedback going both ways with regard to job performance and that that really is the best way to improve performance across the board and that's time consuming it is time consuming but if it's just no easy fix in fact the Americans with Disabilities Act kind of requires an employer to have that kind of roll with regard to employees who have medical kinds of limitations that's right under under the Americans with Disabilities Act for example if you have an employee who has a limitation of some sort and is not getting their job done it is not up to them to tell you that they can't do their job or that they need help it is up to you as the employer to go to the employee and say is there some reason why you're having problem and if there is is there something that we can do to reasonably accommodate your problem and then help them help you design defects help you design of except it's up the employer to go out and identify the cure for the problem if there is a cure or to design one and employee evaluations or should it seems logically be much the same way if you're having a problem let's work together it will help me help you you just described the so-called interactive process where the employee and the employer are supposed to get together and talk about the limitations what and how they can be accommodated so the employee can work the same works the same way it really does it's all in communication David Morrison thank you for being with us yet again thank you also for being with us on behalf of the law works i'm dan ringer good evening if you want to know if you need a lawyer you can discuss your problems with a lawyer by calling the West Virginia State Bar helpline toll free tuesday evenings from six to eight at one eight hundred six four 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