Performance Review Don't ??

slogan

A supervisor gives a performance review and rates and employee above average for attendance and punctuality. The department head reviews the evaluation and "downgrades" the employee to "needs improvement" on attendance and punctuality because the individual used 130 hours of sick leave throughout the previous year. To my knowledge the pay increase has not been downgraded because of this.

Keep in mind that this individual works for a city government, has earned over 80 hours of comp time and has more than 100 hours of both sick leave and vacation leave available.

1. Is it legal to "downgrade" one area because of the use of protected leave (or an earned property right)?

2. Or is legality even an issue to be concerned about and in this situation just a no-no that the supervisor should stay away from?

3. Is it only a legal concern if the supervisor uses this issue to either downgrade or deny a raise in pay?

LivindonSouth

[font size="1" color="#FF0000"]LAST EDITED ON 08-19-05 AT 06:14AM (CST)[/font][br][br]I don't think the word 'legal' even enters the equation. An employee's use of medical leave should never be a consideration in an annual review. This is more than dangerous for several reasons. If a poor review, low increase, discipline or negative action of any sort results due in part to medical absences, this attorney will have a field day.



"Life is a tragedy when seen in close-up, but a comedy in long-shot."
Charlie Chaplin

POPEYE

Don is correct. However in addition to his thoughts, why would you offer and give a benefit such as sick leave or comp time or.... and then "penalize" or reprimand an EE for using it with a downgrade of a performance rating?

Forget any legal issues, what about morale issues?

atrimble

My employees would say, "If s/he's still got time on the books, then the absences must not have been too excessive, huh?"

I'm in a similar situation, and I'm pretty sure I'll be "downgraded" and maybe even formally reprimanded for attendance. (But I still have about 115 hours of paid time off on the books!) We consider annual leave "deferred compensation" since employees can take it with 'em when they leave employment. Sick leave is treated as short term disability, but it's accrued also, so it becomes a property, too. Missouri courts are moving towards considering any accrued leave (vacation, sick, otherwise) as property, and have chastised employers for interfering with employees' rights to use of their property.

If the evaluation system is used to assign points for promotion ("comp time" makes me think your employee is in a union), then downgrading on attendance may cause a delay in or loss of eligibility for a promotion. Other than under a union contract, I can't see much of a legal issue here, if no other issues are hidden in the mix.

I'd check the union contract, but I'd think downgrading an evaluation based on a legitimate business concern can and should be done if warranted. Do you have an attendance policy in place, and if so, was the employee counseled that they were violating it?