David Harmon: Hi, I am David Harmon.
Mariya Gonor: And I’m Mariya Gonor.
David Harmon: And we are The Employment Strategists.
Mariya Gonor: Well, it’s this time of year again, the time when employers and employees alike start gearing up for performance reviews. For some, it’s routine. For others, it’s dreaded. But for too many workplaces, it’s a meaningless performer Exercise, a formality to check off the HR’s end-of-year to-do list.
David Harmon: So, here’s what we see all the time. An employer comes to us wanting to put someone on a performance improvement plan, known as a PIP, or even terminate them for poor performance. And when we review the personnel file, we find stellar performance, glowing feedback that exceeds expectations. Great team players. So, what went wrong?
Mariya Gonor: The problem is that no one cared to actually manage that employee’s performance throughout the time that they were employed. Reviews became paperwork, not management.
David Harmon: And that’s dangerous, not just for performance, but legally. Today, we’re gonna talk about how to change that and how to make reviews meaningful again, and how to put some P.E.P in your performance management process.
Mariya Gonor: Let’s start with a real example, a case that shows exactly how this plays out in court. The case is Woods versus Boeing Company.
David Harmon: In that case, James Woods worked for Boeing for nearly 30 years as a loft tooling developer, say that 10 times fast. His supervisor gave him strong reviews in his last evaluation, such as Woods met all expectations in every category. That’s technical skills, productivity, teamwork, and quality. His supervisor even wrote, you’ve performed well. Keep up the good work.
Mariya Gonor: So solid performance, no red flags. What went wrong?
David Harmon: Exactly. Then Boeing sold its Wichita plant to Spirit Aerosystems. Spirit had no employees, so Boeing’s managers helped decide which workers would be relieved.
Mariya Gonor: When it came to the rehire James Woods, who was 55 at the time, was not rehired, and his supervisor suddenly wrote that Woods had limited skills, low productivity, and marginal teamwork. He wasn’t recommended for rehire. On top of that, all seven workers that the supervisor rejected were age 48 and older. Why do we think that’s a problem, David?
David Harmon: Well, they were all in a protected class. They were 48 or older and glowing reviews one year, poor performance the next, conveniently, when there’s a transition. So, Wood sued under the Age Discrimination and Employment Act, the ADEA. The 10th Circuit Court of Appeals found that inconsistent performance reviews were enough for a jury to find pretext or a basis.
Mariya Gonor: And so what does that mean in practical terms?
David Harmon: Well, that might have been a cover for discrimination, Mariya.
Mariya Gonor: So, the reality was that the manager was selecting younger employees and foregoing the older workforce.
David Harmon: Well, it there was disparate treatment and that’s a key to an employment claim.
Mariya Gonor: Okay. So, the takeaway is that inconsistent performance documentation doesn’t just look sloppy. It can lead to legal ammunition for the plaintiff.
David Harmon: That’s right. This court basically said if you say someone’s doing great and then turn around and call them deficient, well, without any evidence. A jury gets to decide what’s really going on.
Mariya Gonor: And whether the employer is being honest or is just justifying their bad, illegal, discriminatory act.
David Harmon: Right. Well, whether it’s a trumped-up, action, they’re finding they’re effectively fabricating a basis. And then terminating based on that fabricated reason.
Mariya Gonor: So, this case illustrates how truly important performance reviews are and how important documentation is.
David Harmon: That case gets to the heart of it. Performance reviews are not just paperwork; they’re evidence. They’re also one of the few structured opportunities. For real communication about expectations, goals, and growth.
Mariya Gonor: When reviews are honest and ongoing, they protect both sides, employers and employees. But when they’re inflated or ignored, they create a risk. Legally and culturally. You can’t fix performance problems you’ve never documented.
David Harmon: Performance management shouldn’t be a once-a-year event. If you’re running a medical practice, for example, and it’s critical that staff document patient visits. Don’t wait until there are 30 undocumented charts to address it. Don’t wait. It’s too late. That’s not managing, that’s reacting.
Mariya Gonor: So, how do we make performance reviews actually work? We call it the PEP framework. Prepare, Engage, and Practice because it’s time to put some pep in your performance reviews.
David Harmon: This isn’t about sugarcoating or making the process feel good. It’s about turning reviews into real conversations that drive performances all year long.
Mariya Gonor: As attorneys, we never sugarcoat anything, really. It’s against our nature.
David Harmon: Well, that’s true, but there too often, that’s what happens on both sides. There’s a sugarcoating in order to affect termination, and then there’s a sugarcoating to protect people. That’s all. There’s a lot of sugarcoating going on in the workplace.
Mariya Gonor: So, the first P stands for Prepare.
David Harmon: Managers need to collect real information, not rely on vague impressions. That means pulling in peer feedback, client feedback. Project results, making sure it’s current, not some stale information.
Mariya Gonor: Preparation also means giving employees time to reflect and self-reflect. As an employee, you should engage in the conversation and may even lead it. Managers should send employees the following questions ahead of time. What went well this year? What did not go as well as you wanted? What are your most important goals for next year? And also, what do you need from me to help you achieve those goals?
David Harmon: When employees answer those questions first, you shift from a one-way critique to a dialogue. It’s empowering and far less adversarial, and that’s important. And it goes that the manager is creating a real foundation for coaching instead of guessing.
Mariya Gonor: And if you are an employee, the preparation part will look a little bit different for you, but it’s still important. You wanna make sure you look through your brag bag and see what did you achieve this year? Were you rewarded by the management, or was there a project that didn’t go as well as you planned because you needed more support from the company?
David Harmon: Provided a company is giving adequate notice to an employee, That reviews are going to take place and it’s done on a periodic basis. The most important thing is that the employee enters into this process prepared, as you said, reflects on the prior year. Thinks about good and bad in the performance, uh, spectrum, so that they can engage in an interactive process with their employer as it relates to their performance.
Mariya Gonor: The next part that takes us actually into the E in our P.E.P, which is Engage engagement, is the difference between a conversation and a compliance exercise.
David Harmon: So, managers should be as ready to listen as they are to talk. Ask questions like, what barriers are you running into? How can I better support you? And that’s important to have that exchange, to get that feedback. Managers should seek the feedback and employees should read, try to read the tea leaves to find the best moment when they can actually express that.
Mariya Gonor: Absolutely. You want that conversation to be. Constructive, productive and not punitive.
David Harmon: You know, so often, I think in many, many companies, Mariya have reviews where they provide the opportunity for employees to complete reviews. Review themself, reviews self-introspective, but also to enable them to present their accomplishments and then make suggestions for where improvement can take place.
Mariya Gonor: Absolutely, and that’s the difference between engagement and non-engagement. Studies also show that when employees feel safe, to be honest, managers get better information and better outcome.
David Harmon: Well, it also eliminates surprises. No employee should ever hear about a performance issue for the first time at their annual review.
Mariya Gonor: Oh, and certainly not at the time of termination either.
David Harmon: Oh, you would hope not.
Mariya Gonor: The best managers give media reviews all year long, short, honest check-ins that make the formal review almost redundant.
David Harmon: And that brings us to the last P. Practice feedback isn’t a one-and-done event. It’s something you practice throughout the year. If you’re a manager, model the behavior you expect.
Mariya Gonor: If you want your team to document consistently, you need to document consistently. If you want accountability, follow up on what you’ve discussed.
David Harmon: Document, document, document. And don’t forget to recognize improvement. That’s important. Performance management isn’t just about correcting; it’s about reinforcing progress. Celebrate wins, and that’s how you keep people motivated.
Mariya Gonor: So, let’s circle back to the very important legal lessons, right, which is inconsistent performance records are every plaintiff’s dream exhibit. When performance reviews say one thing, and your employment actions say completely opposite, it screams pretext, it screams discriminatory intent. So, remember, accurate. Honest and timely feedback is your best protection.
David Harmon: It’s also the most respectful thing you can do for your team. People deserve to know where they stand, not to be blindsided months later.
Mariya Gonor: Absolutely. So, as the employment strategist, let’s transition into the strategies for the employers and employees.
David Harmon: Okay. All right. So, we’ll take the employer’s strategy first.
Mariya Gonor: So, as an employer, remember, don’t treat performance reviews as an HR formality. Treat it as an opportunity to communicate, clarify, and connect.
David Harmon: And put some PEP in it, which would be Prepare, Engage, and Practice, as we’ve said.
Mariya Gonor: Now as an employee.
David Harmon: It’s important to present your performance in the most favorable light and to be cognizant of where you have room for improvement.
Mariya Gonor: Also, as an employee, it is important to save all of your performance reviews in your employment. Go back. And as always, while we hope that you found our time together entertaining and educational, please remember that this is not legal advice and should not be taken As such.
David Harmon: If you wish to continue the discussion, you can contact us at theemploymentstrategists@norris-law.com.