While New Hampshire is an employee-at-will state, meaning that either the employer or the employee may end the relationship with or without cause or notice, there is a public policy exception to that law plus federal and state statutes to set parameters regarding the ability to fire or take other adverse employment actions against an employee.
An annual job performance evaluation is appropriate. Sometimes a more frequent evaluation is merited such as within three months of a new job position of an employee to discuss what she is doing right, where she needs improvement in her new job, and to learn from her how she believes the new job is going. Those who conduct performance evaluations should not make any negative comments based upon protected classes or protected activities of an individual. For example, comments such as “the squeaky wheel doesn’t always get the oil, but sometimes is replaced” may be evidence that later disciplinary decisions are because an employee engaged in what is called concerted activities under the National Labor Relations Act by discussing with co-workers what is wrong at the workplace. Job performance evaluations should concentrate on that employee’s job performance.
If a fired employee claims wrongful discharge due to a protected class, such as gender or race or a protected activity by her exercising the right to request worker’s compensation for a work-related injury and the employer states she was actually fired due to chronic poor job performance, if her job evaluations show in most categories that she “meets expectations”, the employer will be challenged with those evaluations. Also juries are generally made up of employees who will consider whether if they were in the employee’s shoes would feel fairly treated. If an employer does not give the chronically underperforming employee an opportunity to shape up or ship out, the jury may find the employer was unfair.
While it is important to point out any underperforming employee’s deficiency, it is just as important to point out what an employee is doing well and encourage that employee with positive reinforcement. Employees are team members and they need encouragement when they show initiative, work extra hard providing great customer service, or otherwise excel in their job. The boss should not only recognize in an evaluation the effort that employer wants to encourage, but he should also provide the appropriate level of positive praise such telling him “Nicely done!” or “Thank you for making my job so much easier.” Honest, positive, praise is often extremely important for a high achieving employee’s morale and will increase the likelihood of that employee staying with the company and continue to exert the extra effort.
Simply put, bosses should make time for job evaluations which are detailed and honest to incentivize those employees to continue to do the good they are doing and improve on what needs improvement.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].