Tag Archives: HR

Favorite Firing: Discharge for Dishonesty Is Not FMLA Retaliation


FMLA DOL.pngWhen the Family and Medical Leave Act became law in 1993, it immediately changed the relationship between managers and employees. It became much harder to discipline employees for attendance, if their absences were even arguably covered by the FMLA. But a recent case demonstrates that if an employee lies about his or her need for FMLA leave, then discharge for the dishonesty is appropriate. See Sharif v. United Airlines, Inc., No. 15-1747 (4th Cir. Oct. 31, 2016).

The Facts: Masoud Sharif, an employee of United Airlines in the U.S., had suffered from a diagnosed anxiety disorder for several years, and he was frequently absent from work due to panic attacks. For many years, United Airlines approved his requests for FMLA leave. In fact, in the two years prior to his discharge, Mr. Sharif took 56 days of approved FMLA leave.

Mr. Sharif and his wife (also a United employee) went on a three-week vacation to South Africa in 2014. He used time-off days for most of the time, but not for two days in the middle of the scheduled absence. He tried to swap shifts for those two days within United’s swap policy. He found someone to cover one shift, but not the other. While still in South Africa on the day that his absence was not covered, he called to request FMLA leave for that shift. (He did not call to request the leave until it was too late to fly back to the U.S. from South Africa, and he had no airline reservation back to the U.S.)

The Sharifs returned to the U.S. in time for Mrs. Sharif’s first scheduled shift after the irvacation. United then noticed that Mr. Sharif had only requested FMLA leave for the one shift he was scheduled to work during his vacation. Mr. Sharif had similarly taken FMLA leave during a planned absence in 2013. Therefore, United decided to investigate.

When United managers questioned him, Mr. Sharif first claimed he was not scheduled to work on the day in question, but he did not explain why he requested FMLA leave for that day. He gave inconsistent and implausible statements about trying to fly home from South Africa, then claimed he suffered a panic attack over his inability to return home, which is why he requested FMLA leave.

United determined that Mr. Sharif had been dishonest in his request for leave and during their investigation. Dishonesty was a violation of the United “Working Together Guidelines.” The airline suspended him without pay. United was prepared to discharge him for fraudulently taking FMLA leave and for making false representations during the investigation. On the recommendation of his union, Mr. Sharif retired, so he would not be terminated.

Mr. Sharif later filed suit alleging the threat of termination constituted retaliation for taking FMLA leave. The district court granted United’s motion for summary judgment, and the Fourth Circuit affirmed. The Fourth Circuit held that termination of employment for abusing FMLA leave and for lying during an investigation into the FMLA abuse is not retaliation under the FMLA.

The Moral: This is another case where an observer wonders what the employee was thinking. Several of Mr. Sharif’s statements were easy to refute based on airline schedules. The whole situation—leaving one day uncovered in the middle of an international vacation, then requesting FMLA leave on that day—would raise the specter of employee dishonesty in any objective mind. Common sense should prevail in a case like this, and fortunately it did.

As the Fourth Circuit held,

“Sharif has failed to create an issue of triable fact that the explanation United Airlines provided for his discharge was a pretext for retaliation for taking FMLA leave. To hold otherwise would disable companies from attaching any sanction or consequence to the fraudulent abuse of a statute designed to enable workers to take leave for legitimate family needs and medical reasons.” [emphasis added]

In its decision, the Fourth Circuit provided guidance for determining whether FMLA retaliation has occurred, when the circumstances surrounding the request for leave or the leave itself triggers an investigation and adverse action. The Fourth Circuit stated that an employer’s retaliatory intent “can be established either by direct evidence of retaliation or through the familiar burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800–06 (1973).”

The well-known McDonnell Douglas analysis requires the employee to establish a prima facie case of retaliation. If the employer then rebuts the prima facie case with a legitimate, nondiscriminatory reason for the adverse action, the employee then has the burden to prove that the proffered explanation is pretextual.

The Fourth Circuit explained that both pretext and employer intent can be demonstrating by considering

“ ‘among other things, the historical background of the . . . decision; [t]he specific sequence of events leading up to the challenged decision; [d]epartures from the normal procedural sequence; and . . . [any] contemporary statements by members of the decisionmaking body.’ See Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 489 (1997) (quoting Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267-68 (1977)).”

The Fourth Circuit went through these factors and found that United’s past acceptance of Mr. Sharif’s FMLA claims, Mr. Sharif’s inconsistent explanations, the timing of his and his wife’s vacations, and the lack of any attempts to make return reservations so he could work the shift, all demonstrated that United did not retaliate.

Mr. Sharif also claimed that he should have received lesser discipline for not working the shift. However, the Fourth Circuit cited the frequently quoted words supporting court decisions in support of employers:

“courts are not ‘a kind of super-personnel department weighing the prudence of employment decisions.’ DeJarnette v. Corning, Inc., 133 F.3d 293, 299 (4th Cir. 1998).”

Because Mr. Sharif’s offense amounted to “misrepresentation and fraud,” the Fourth Circuit found that discharge was appropriate, thus establishing that there are at least some occasions in which an employer can still manage attendance.

Have you ever dealt with suspected FMLA misrepresentations? What was the outcome?

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Favorite Firing: When a Customer Harasses an Employee


adult-15814_1280The usual adage in American businesses is “the customer is always right.” And usually that is true. I’ve posted on a few occasions about the need for many organizations to improve their customer service. But it isn’t always true. Sometimes the customer is dead wrong. Today’s “favorite firing” is about a case where the customer was wrong, and then an employee alleged she was treated improperly when she complained about the customer’s behavior. After the alleged retaliation, the employee quit. So strictly speaking, this is a constructive discharge case, not a firing.

The Facts: In Prager v. Joyce Honda, Inc. (Aug. 22, 2016), Nicole Prager, a 20-year-old receptionist at the Joyce Honda dealership, complained to her managers that a high-profile customer pulled on her shirt and revealed her bra. There was no doubt as to what had happened, because the incident was caught on the dealership’s surveillance tape.

Her managers discouraged her from filing charges against the customer because he was a really good customer who had purchased 20 cars over the years and regularly had his cars serviced at the dealership. Despite her managers’ cautions, Ms. Prager did file charges. In fact, once she made the decision to file, the dealership managers called the police and provided an office at the dealership where she could talk to the police. (Later, the customer pleaded guilty to offensive touching and paid a fine.)

After she filed the charges, Ms. Prager alleges that some of her her co-workers began behaving coldly toward her. In addition, she received two written warnings for leaving work early on two occasions. One of these occasions occurred prior to filing the complaint against the customer and the other was an incident after she filed the charges. She objected to the reprimands, saying they were retaliatory and that she had left work early before without being disciplined. Her managers said they reprimanded her because she had not communicated about her leaving early on these occasions, as she had in the past. Nevertheless, the employer offered to rescind the disciplinary warnings, but Ms. Prager resigned instead.

In her lawsuit claiming retaliation and constructive discharge, Ms. Prager alleged that the dealership had become a hostile workplace environment for her, which justified her resignation. The trial court dismissed Ms. Prager’s lawsuit, saying that employers were not responsible for the conduct of customers in the workplace. Ms. Prager appealed.

The Appellate Division in the New Jersey courts also rejected her complaint, although the Appellate Division said that filing a police report against the employer’s customer was a protected act. However, though she could state a claim for retaliation, she had not sufficiently alleged a retaliatory consequence in her complaint—she had resigned immediately after receiving the reprimand and the dealership had offered to make the reprimands go away. The court said

“no reasonable juror could find that conduct ‘so intolerable that a reasonable person would be forced to resign rather than continue to endure it.’”

The Moral: Any complaint of harassing behavior by an employee should be taken seriously. And once an employee complains, the employer must be careful not to retaliate. Those are givens. Moreover, managers should be supportive of employees who complain and who decide to take their complaints to higher authorities, whether those authorities be internal company investigators, administrative agencies, or external law enforcement.

In this case, reading the Appellate Division’s opinion is instructive. It is clear from what the court says that part of the problem was that this employee was young and inexperienced in dealing with harassment and the follow-up complaint process. Her managers did not help the situation—they did pressure Ms. Prager not to complain about a valued customer, though they ultimately did support her. This case is a good reminder that we take our employees as they are, and must adapt our responses in some respects to their unique circumstances.

The timing of the warnings to Ms. Prager was unfortunate at best, and possibly retaliatory, though the court held that the two warnings in this situation were not sufficiently retaliatory to support constructive discharge. The management rationale for the warnings—that Ms. Prager was not communicating with them—probably should have been dealt with through a verbal discussion, at least initially, saving the heavier discipline of a written warning for a later occasion more distant from the harassment.

Nevertheless, there is good news for employers in this case, namely that constructive discharge is difficult to prove. If managers show an ongoing willingness to work with an employee in reasonable ways, it will be hard for the employee to prove that the workplace is so intolerable that he or she must resign. While any disciplinary action against an employee who has complained of discrimination or harassment should be carefully considered, it is appropriate to hold employees accountable for their performance and for following reasonable company policies.

When have you dealt with allegations of constructive discharge?

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Performance Management Isn’t About Deadwood


MP900341467I recently wrote about performance management and the abolition of performance reviews at certain companies. Then I read a Wall Street Journal article last week stating that one of Kimberly-Clark’s goals is “managing out deadwood.” So much for doing away with performance reviews at that company.

The article states that Kimberly-Clark has about a 10% total turnover (voluntary and involuntary), and that employees are expected to “keep improving—or else.” I don’t disagree with a focus on continuous improvement, and a 10% turnover is not excessive. Still, performance management and “managing out deadwood” are two different things in concept, if not always in the end result. And they have different consequences both from a legal and from an employee relations perspective.

From the legal perspective, talking about employees as “deadwood” can lead to complaints of age discrimination. See Herr v. Nestlé U.S.A., 2003 Cal. App. LEXIS 855 (June 12, 2003), described here.

Any indication that an employee over age 40 is past his or her usefulness is problematic. Of course, employees can be ineffective performers at any age, but the tendency at many companies that initiate performance improvement drives is to focus on employees who have been sitting around for awhile—and who tend to be in the protected age group.

From the employee relations perspective, it can be demoralizing to adequate performers to know that managers are snapping at their heels, that as soon as the worst performers are out, a continuous improvement drive will mean employees who are in the lower mid-tier are now at the bottom.

Yet a true continuous improvement program means there is always someone at the bottom. It’s not like one manager told me once, “We’re done—we fired all our poor performers last year.”

Despite my quip above (“so much for doing away with performance reviews . . .”), there actually is no disconnect between abandoning annual reviews and an emphasis on performance improvement. In fact, it may be easier to focus on performance issues with the more regular discussions between managers and employees advocated by such companies as General Electric, Adobe Systems, and others.

Whatever performance culture a company decides to adopt, the important thing is to train managers to handle it well, to avoid the legal pitfalls of only focusing on older low performers or others in certain protected groups, and to keep the emphasis both encouraging and disciplined.

Performance management isn’t about getting rid of deadwood. It’s about improving every employee’s performance—including that of managers.

When in your experience has a performance management emphasis caused legal or employee relations problems?

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The Lonely Role of Human Resources Professionals


HR wordle“I don’t think I can ever join their book club,” an HR acquaintance of mine told me one time about a group of employees in her division who socialized together. “I know too much.”

I was also in Human Resources at the time, and I’d been a corporate attorney before that. I knew exactly what she meant. HR professionals—and employment attorneys also—sometimes learn too much about the people they work with to be comfortable socializing with other employees.

office 2 people Y01VDYAX63HR can be a lonely profession. You know who is on a performance improvement plan. You know whose jobs are about to be eliminated. You probably even know who is having an affair with whom. In all these situations, confidentiality is important. There are few people you can share information with—and typically, the fewer the better.

As social media options expand, the choices that HR professionals must make become even harder. Do you “friend” or “follow” others in your organization, knowing that you might see posts about their off-work activities that could have implications at work? What if they post racist or sexist comments? What if they post a photo of themselves lifting weights at the gym when they have lifting restrictions at work? (Don’t laugh—it’s happened.)

Some HR employees set firm policies for themselves that they will not follow anyone from their company on social media. Some won’t use social media themselves. And yet, our co-workers are often our best friends. By limiting our social media and other communications, we limit our social interactions.

book BCLRC8HNEOI am in a book club with a senior HR manager in the company I used to work for. While we gossip about common acquaintances, she is discreet about what she says. I am no longer privy to confidential information about these individuals, but she still is. I respect and admire her circumspection.

I remember being in her shoes and not having anyone to talk to about particularly thorny situations—such as when a senior corporate employee had been accused of sexual harassment, or a well-respected employee had serious medical issues. Those were difficult and lonely times.

When I was in a senior HR role, I was fortunate to have a couple of fellow HR professionals whom I respected and trusted. Sometimes I felt comfortable using them as sounding boards to talk through difficult cases. I could role play with them or talk through likely responses from the employee in question.

But twice that I can recall I was involved in negotiating a severance agreement with the individuals who managed my trusted peers. I could not bring them into the situation, and therefore had no one to review the situations with. On another occasion, I had to discipline one of my HR peers for violating corporate policy. Again, since the individual was not being fired, I couldn’t talk about the case at all.

The higher up you are in Human Resources, the lonelier it is. The more you know about the organization and its future plans, the more prominent people you work with, the less likely it is that there is anyone to discuss these matters with. In fact, CEOs typically use their chief HR officers as their sounding boards about any and all talent issues in the organization, from performance problems of corporate officers to succession planning to how to integrate or downsize a newly acquired unit. What can the HR VP do when he or she would like a sounding board to discuss the CEO?

The worst thing that can happen for an HR professional is to lose the trust of the people in the organization. As a matter of course, HR employees walk a line between being viewed as management shills and employee coddlers. HR has to keep the long-term good of the organization in mind, and not lean too far toward either management or employees. In fact, HR needs to knock down the walls between management and employees by building a strong employee relations culture.

Still, losing trust is easy to do. Any ethical lapse or revelation of confidential information, and HR loses its effectiveness. So loneliness is part of the job. Good HR professionals learn to live with it.

When have you faced loneliness on your job?

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Matrix Organizations: Advantages and Disadvantages


matrix-organizational-structureI’ve been thinking about matrix organizations recently—about the pros and cons of these complex structures and about my experience in one many years ago.

A matrix organization is one in which there are dual reporting structures. In the typical matrix, subject matter specialists—such as finance, human resources, or I/T specialists—report both to management in their specialty and also to management in the line area that they support. Matrix organizations vary in which of the two reporting relationships is direct and which is indirect.

For example, when I was a Human Resources director, I reported directly to the line area and indirectly to the Vice-President of Human Resources. But similar matrix organizations might well choose to have the direct reporting relationship be to the Vice-President of Human Resources, and the indirect reporting to the line area.

Obviously, a matrix reporting structure adds complexity to an organization. Sometimes it is higher cost as well. And employees in the matrix do sometimes get pulled in conflicting directions—when there were differences of opinion between my direct boss and the V-P of HR (who were peers), I and others in my same role in the organization had to exercise a fair amount of diplomacy to work our way through the situation.

So the benefits of the structure must outweigh these disadvantages. What are the benefits? Here are the main advantages I see:

1. Better service to the business

When HR and other corporate specialists are not aligned with the business units they support, they often develop a rigid silo mentality. Finance specialists do not consider what each division needs to measure for greatest productivity. I/T specialists develop systems in a vacuum. And HR specialists impose performance incentives that do not relate to the work being done.

The conflicts I experienced in the matrix organization where I worked were occurred when the HR division rolled out such initiatives as management training programs and compensation systems that did not work in the part of the corporation where I worked. The challenge I faced was in working with both HR and the line area to adapt the corporate system to what would work in my division. I think our division—and therefore the entire corporation—was better served because of this attention to what was needed and not needed in different work groups.

2. Expertise and flexibility of specialist functions

Although having a group of corporate specialists can develop programs that are extra work in some divisions, they are also able to make world-class expertise available across the corporation. This prevents specialists from becoming stale in what they can offer the company.

Had I been aligned solely with the business, I would not have had the opportunity to work with as many HR specialists and learn as much about my area of expertise. The matrix permitted our corporation to have more HR specialists who could develop more leading-edge programs that we could take across various divisions. Not every program worked everywhere (as explained in the preceding section), but we were still better off for having tried a variety of new things.

A recent Wall Street Journal article stated that improvements in military trauma care are limited in part because

“no single general is in charge of battlefield medicine. Combat commanders—infantrymen, artillery officers and others with no medical training—are in charge of medical personnel on the front lines.”

In other words, if there were a matrix organization giving a medical professional oversight of all battlefield medicine, in addition to the combat commanders, trauma care might improve.

3. Better development of specialists

I acquired better HR knowledge faster by working in a matrix organization than I would have working by myself in the line division. I gained a broader perspective on the organization from seeing how other HR specialists worked in their divisions, and I saw my particular division at a deeper level than I would have if I had worked only in HR.

I also learned better “managing-up” skills than I would have in a siloed organization. By having to serve two masters, I learned tact and persuasion. I also learned to find my allies and how to predict when I might face an exploding grenade. Sometimes I could even prevent the grenades from landing.

Conclusion

As one article stated, “Organization structure should always follow strategy.” Where integration across divisions is important for corporate strategy, then a matrix organization makes sense. Just be aware of the pros and cons when choosing this complexity.

Moreover, it is important to keep in mind that every organization is designed perfectly to get the result it gets. The reporting structures and matrix relationships will impact organizational results. According to Jay Galbraith, strategy, structure, processes, rewards, and people all need to be aligned to successfully implement a matrix organization.

For good information on matrix organizations, see

What is your experience with matrix organizations?

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Favorite Firing: When a Supervisor’s Actions Make a Termination Difficult to Defend


4th cirI am typically suspicious of lawsuits in which a plaintiff employee alleges every possible form of discrimination against his or her employer. It seems unlikely that an employer is motivated by many different forms of bias when deciding on a disciplinary action or termination—race and gender and age and pregnancy can’t all be the basis for the decision, can they?

And yet, when an employer and its supervisors screws up a case so badly with multiple derogatory statements over a lengthy period of time, and when they then fire the employee shortly after she complains about the harassing conduct, the case is likely to get heard on the merits and will cost the company a lot of money to defend.

Such a case, Guessous v. Fairview Property Investments, LLC, No. 15-1055 (4th Cir. July 6, 2016), recently came before the Fourth Circuit Court of Appeals. The Fourth Circuit reversed the lower court’s grant of summary judgment to the defendant, and now the employer must gear up for a trial.

The Facts: In Guessous v. Fairview Property Investments, LLC, Monica Guessous, a female Muslim-American bookkeeping assistant of Moroccan descent, sued her employer, a property management firm, after she was discharged. Her complaint contained multiple claims, including discrimination based on religion, national origin, and pregnancy, hostile work environment, and retaliation.

Shortly after she was hired by Fairview, Ms. Guessous began reporting to a new supervisor, Greg Washenko. She alleged that Mr. Washenko began making offensive remarks when they were first introduced, when he said he had previously worked with a “bunch of Middle Easterners and they are a bunch of crooks who will stop at nothing to screw you.”

As their work relationship continued, Mr. Washenko allegedly discussed Moroccans, Muslims, and Middle Easterners repeatedly in disparaging and offensive ways, and asked Ms. Guessous questions about Middle Easterners, about suicide bombers and other terrorist acts, and about Islam. When Ms. Guessous told Mr. Washenko that Muslims were not terrorists, Mr. Washenko responded, “Yeah, sure. Like my buddy says . . . not all Muslims are terrorists, but most are.”

The Fourth Circuit opinion goes on for pages about Mr. Washenko’s comments. According to the Fourth Circuit, Washenko consistently conflated Ms. Guessous’s identity as a Moroccan Muslim with other Middle Eastern identities, so that the court had difficulty determining whether his remarks related to race, ethnicity, national origin, or religion.

When Ms. Guessous became pregnant, Mr. Washenko didn’t want to grant her a three-month maternity leave, and she had to tell him she was legally entitled to a 12-week leave. When she returned from maternity leave, her work duties had been assigned to other staff. Two months later, she asked Mr. Washenko for her old duties back and complained about his past behavior. Just 75 minutes after this meeting, the company president asked Fairview affiliates if they had openings for Ms. Guessous, because Fairview did not have enough work for her.

Then Ms. Guessous was terminated in March 2013. She was told the company did not have work for her. Her responsibilities were transferred to an outside accountant and to Mr. Washenko.

The Moral: This case demonstrates several problems for employers.

First, of course, is the alleged behavior by Mr. Washenko. In summary judgment rulings, the facts must be considered in the light most favorable to the plaintiff—in this case, Ms. Guessous. It is possible that a judge or jury after a trial will find that Fairview did not discriminate against Ms. Guessous. But with the allegations described in the Fourth Circuit opinion, Fairview is facing an uphill battle on liability.

Second, the Fourth Circuit indicated that the fact that Fairview didn’t have work for Ms. Guessous was not sufficient rationale to defeat her claims of discrimination. The Fourth Circuit said that the lower court had granted summary judgment for Fairview solely because the company did not replace her after she was fired.

“The court offered no elaboration in its opinion, but its logic appears to have been that, because the work was absorbed by Fairview’s other employees, Guessous cannot show that there was enough work to justify keeping her on staff and she therefore cannot prevail. If that is, indeed, the court’s reasoning it is a fallacy: because Fairview has shown it could operate without Guessous does not mean that it would have done so absent the protected activity.”

Thus, once an employer or its supervisors have engaged in discriminatory or harassing behavior, a restructuring of duties to get rid of an employee is also discriminatory. It seems unlikely that an employer can show any evidence to defend itself in such a situation.

In this case, the facts were particularly egregious. As the Fourth Circuit said,

“A reasonable jury could easily conclude, however, that the termination decision was made only seventy-five minutes after Guessous’ complained to Washenko about past comments and treatment, and that it was therefore motivated by the complaint itself.”

Thus, the Fourth Circuit said that a reasonable jury could find that Fairview’s argument that it lacked work for Ms. Guessous was a pretext for discrimination.

The morals to this case, then, are that (1) employers, including all supervisors, should refrain from disparaging comments about employees’ national origin, religion, and other protected categories; (2) employers should provide employees with all mandated leaves and other benefits without question; and (3) employers should not respond to employee complaints by immediately doing away with the employee’s job.

More broadly, the moral of this case is that employers need to be sure that discussions in the workplace about political and newsworthy events remain civil and that no racial, ethnic, or other protected group is mentioned in disparaging ways. A good moral for us all to take to heart in the middle of this political season.

When have you encountered managers who behaved inappropriately?

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Performance Reviews—Make Them More Flexible to Make Them More Meaningful


Business Handshake2016 is half over. I’ve asked before in the middle of the year, are you halfway toward meeting your performance objectives?

That question is still a good one to ask yourself as a form of self-assessment. But it might need tweaking. From a management perspective, the question is probably less relevant than it has been traditionally. There is a trend away from annual performance reviews and annual objectives toward a more flexible system. I think this is a good trend.

Businesses from General Electric to IBM to Goldman Sachs are moving to more project-oriented, shorter term performance objectives. And if GE is changing, you know something is afoot—Jack Welch instituted the epitome of the “rank and yank” performance management system.

The best performance management systems focus on (1) on aligning employee performance with organizational goals and (2) communications between managers and employees. The “annual” nature of performance management worked better in a steady-state business environment than in today’s faster paced, ever-changing situations

I have long been an advocate of managers’ giving performance feedback more frequently than once a year (see here, here, and here). And if managers don’t conduct regular formal or informal performance reviews, employees should ask for more coaching and feedback.

But it’s all to the better if corporate systems promote this regular dialogue about performance.

The new IBM system, called Checkpoint, envisions shorter-term goals and quarterly progress reports. It judges employees on five criteria—business results, impact on client success, innovation, personal responsibility to others, and skills. So there are five scores, rather than a single performance rating.

GE is also moving toward a more flexible system with more frequent feedback.

And Goldman Sachs is dropping its numerical ratings in favor of “qualitative” feedback that is “real-time” during the year, rather than using annual reviews, though it is using verbal ratings of “outstanding,” “good,” and “needs improvement.”

All these systemic changes feel like they are moving employers in the right direction on performance management. But, as with most management tools, it isn’t the tool or the system that is important, but the communication between managers and employees.

As one writer recently pointed out,

“The more seriously an organization takes its performance review process, the less human a workplace it is!”

The focus should be on the human element, not on administering a system.

What is your company doing to keep its performance management system relevant to today’s workforce?

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