Published on July 24th, 2012 by Alan L Sklover
“The only perfect person
is a perfect idiot.”
- Sklover Household Saying
ACTUAL “CASE HISTORIES”: For nine years, Margaret, was universally considered a top performer in her position as Vice President of Vacation Residences for a diversified real estate company. Time and again, internal audits showed her division to be among the most efficient, profitable and growing in the company. Year in and year out, Margaret’s performance reviews were either “exceeds expectations” or “meets all expectations.” What’s more, Margaret had received significant bonuses, promotions and awards for her good work. That is why Margaret didn’t see it coming.
In February of each year, Margaret’s company disseminated annual performance reviews. During the past year, Margaret’s division did not prosper, due to the economy, but it did not suffer, either. And she had not received any negative reports, comments or complaints. As she had each year before, Margaret received word she was to meet with her supervisor to go over her annual review. Nothing new in that; that is what happened each year. Another reason that Margaret didn’t see it coming.
When Margaret met with her supervisor, as was the custom, Margaret was handed a copy of her annual review to read before the two discussed it. As she opened the papers before her, Margaret was startled to see a few comments that seemed negative, and a few “needs improvement” boxes checked. When she saw her overall evaluation to be “Partially Meets Expectations,” her first thought was “They must have given me someone else’s performance review by mistake.” No such luck; it was hers, and it was brutal.
Margaret went silent, and barely spoke a word throughout the entire meeting. As requested Margaret signed her name at the bottom of the last page. Afterwards, she walked straight over to Human Resources, and shared her feelings of upset, anger and betrayal. She was told there was nothing she could do. She was told performance reviews are “not negotiable.” She was told that perhaps she should consider whether her job was really the right fit for her. She was told perhaps she should consider looking “elsewhere.”
She just never saw it coming. Worse still, far worse: she did not know where it was headed.
LESSON TO LEARN: In the first 25 or so of my 30+ years of working with employees, I shared the commonly held view that Performance Reviews were “no big deal,” that they were not usually cause for concern, and that they surely were not anything an attorney was involved with. The past five years or so has made me feel quite different.
Today, I find that issues of Performance Reviews, and their “cousins,” Performance Improvement Plans, to be among the top reasons people contact me, or review my blogsite. And, yes, I have come to view them as something that an attorney can – and should – help employees with.
That is because they are sometimes “corrupted” by (a) false information, making them potentially fraudulent, (b) improper motivations, such as discrimination or harassment, (c) damaging to professional reputations, and (d) in my humble opinion, increasingly being used to deny employees what they have earned, the protections supposedly afforded them by company policies, or even their jobs. Yes, I have come to view Performance Reviews as sources of significant problems in the workplace.
That said, I am of the view that “for every problem there is a solution.” I strongly suggest that every employee who believes that his or her Performance Review is incorrect, improper or otherwise “corrupted” should respond in an appropriate and effective way. I am also of the firm opinion that, if not addressed promptly and thoughtfully, a negative Performance Review can become a much greater problem, potentially leading to a lower bonus, diminished chances for advancement, loss of ability to transfer within the company, or even job loss.
That is to say, a robust Performance Review Rebuttal both addresses the past, and protects the future. Its goals need to be: (1) to make a correct and true record of your performance; (2) to ensure that negative consequences do not follow, whether a Performance Improvement Plan, a reduced bonus or even job loss; and (3) to show the Reviewer and others that the employee is capable and prepared to defend his or her performance record, and hence his or her career and your family.
Gone is the time that an employee who receives a negative Performance Review can simply say, “Oh, well, I will just try harder next year.” That time is long gone. These days, and henceforth, those facing a problematic Performance Review have no real choice but to submit an effective Performance Review Rebuttal. Here’s how.
WHAT YOU CAN DO: Here are 16 Steps to a Robust Rebuttal to a Performance Review that is inaccurate, misleading, wrong, unfair, dishonest or otherwise problematic:
1. No matter what, keep calm and courteous throughout your Performance Review meeting. It is absolutely essential that you don’t make a bad situation worse. Some people get angry and loud – or even threatening – when they are dishonestly or unfairly criticized. That can only make things worse, and can even get you immediately fired for bad conduct, which is the worst thing that could possibly happen.
If you think there is any chance that you might “lose your cool,” you may need to claim a sudden “physical malady,” and calmly excuse yourself from the room. As examples, “I feel faint; I must go home for my medicine,” or “I’m sorry, I must have eaten something spoiled at breakfast. I am afraid I must go to the ladies’ room, and then home.” Such a “physical malady” is always an acceptable ticket out of a difficult, stressful situation, and is not capable of mischaracterization as “walked out of the meeting,” which would be quite negative for you.
2. If asked to do so, you must acknowledge receiving your Performance Review, but you do not need to say you agree with it. The following question is commonly asked of me: “Must I acknowledge receipt of my Performance Review?” The answer is, “If you are asked to do so, yes, you must.” Otherwise, it could be deemed a refusal to cooperate with company procedures, which is a kind of insubordination, for which you could be fired.
That said, you never have to say or write that you agree with the substantive contents of your Performance Review. You can (a) acknowledge that “I have received a copy of this Performance Review,” but also write in (b) “However, I do not agree with its contents, and plan to submit a rebuttal.”
3. Get a copy of your Performance Review, and read it over carefully. Chances are that you did not read your Performance Review carefully at your meeting, and don’t have a clear recollection of what you did read. It is a common practice among most employers to provide employees with copies of their Performance Reviews at the end of such meetings. If this is not the customary practice of your employer, in an email ask your supervisor and/or your Human Resources for a copy, and ask that it be sent to you by email.
When you receive it, read it over carefully, perhaps twice, and make a list of (a) things in it that are in error, (b) reasoning or logic that is in error, (c) things that should be in it but are missing, (d) grossly subjective statements, and (e) all the other reasons it is unfair, dishonest and improperly motivated.
4. Ask your Reviewer, or HR, whether a Rebuttal requires any special form, procedure, or timing. Some employers have a certain procedure and a certain form that employees must use to respond to their Performance Reviews. In an email, ask HR (a) if a certain procedure or form is required, (b) if so, where can you get a written description of that procedure or form, and (c) if there is a deadline to your filing your response.
If a certain form is required, do not limit yourself to it. Some forms only permit a certain number of words, or require only that certain boxes be checked off. If your required rebuttal form is “restrictive” in this way or others, just ignore it, and do what you think is your best job in rebutting.
If no specific procedure or form is required, ask your HR representative what usually transpires when an employee files a rebuttal to a Performance Review. For example, is the response usually put into the employee’s HR file? Does someone usually investigate? Are Performance Reviews ever modified as a result? Is there some kind of “mediating meeting?”
You may want to move forward as soon as possible if, as is common, your bonus for the year will soon be based on your annual performance rating.
We offer a Model Memo entitled “Requesting Performance Review Rebuttal Procedures and Forms.” To obtain a copy, just [click here].
5. Note any (a) factual errors, (b) inconsistent statements, and (c) failures in reasoning. Make a list of all factual errors that exist in your Performance Review, provided they are not simple typos or otherwise without significance. For example, if your sales for the year were 2% under goal, and your Performance Review says they were 20% below goal, that is surely significant. On the other hand, if your sales for the quarter were $2,000,002, and your Performance Review says “2 million,” that is simply not significant.
Inconsistent statements suggest that your Reviewer either didn’t devote sufficient time and focus to preparing your Performance Review, or he or she is trying to force a conclusion out of facts that don’t lead to it. For example, on the one hand, a sales achievement of 135% of goal, and on the other hand, “failed to meet sales goal” are simply not both possible.
The same goes for errors in reasoning. For example, if your sales total for one quarter was 2% under goal, and on this basis your Performance Review states that you failed to maintain client relations properly, the two just don’t make sense. The second statement does not logically follow from the first. Surely something is in error, as the two statements have no rational connection.
6. Make a list of comments based on “extreme subjectivity.” I can’t count the number of times clients have reported statements in their Performance Reviews like this one: “Failed to make me feel comfortable in her abilities,” or “Needs to make himself more visible.” Or how about this doozy: “His work does not please me.” None of these can be proven, or disproven, and all are potentially either (a) made up (that is, falsified), (b) mental impressions without basis in reality, or (c) entirely capable of being based in personal animosity, discrimination or other improper motive.
Performance is not a feeling. It is not a mental impression. It is not an emotion. It is whether or not, in fact and reality, assigned tasks were accomplished and responsibilities fulfilled. It is not “touchy-feely,” but rather “cold, hard reality.” If your performance review is loaded with mental impressions, feelings, emotions and/or other subjective statements, these should be raised in any Rebuttal you prepare.
7. Are your achievement of assigned goals or specified success criteria being ignored in your Performance Review? If you have previously been assigned objective goals or achievement criteria – such as seeing at least 18 patients per day, or perhaps lowering your department’s overhead by 7.5% – are you being measured against those objective criteria? I’ve seen many instances in which supervisors have ignored the achievement of objective performance criteria because the achievements have been positive, and have reported, instead, more subjective alleged failures, incapable of being proven, such as “lack of pride in work,” “failure to lead effectively,” and “poor oversight of subordinates.” I always say to myself, “How could a person fail as an employee, as a leader and as a supervisor, and yet have his department achieve all of its assigned, objective criteria of success?” It is an important point to make if your assigned goals and specified objective criteria are being ignored.
8. Consider what else may be wrongly ignored and missing from your Performance Review, such as (a) no prior notice of problems, (b) absence due to maternity, illness, personal leave, etc., (c) relative performance, and/or (d) directed diversions of your time and attention. Many times we see important circumstances not taken into account when performance is evaluated. The four matters mentioned above – (a) your not receiving any prior notice of dissatisfaction or inadequacy all year long, (b) your being out for a good part of the year due to approved reasons, (c) your or your department’s performance being better than other departments or other company’s, and (d) your time and attention being diverted to other projects by management – are the four most commonly seen. There are, of course, many, many others. Failure to take such matters into consideration when evaluating an employee’s performance makes the evaluation a mischaracterization, a miscalculation, and nothing less than a significant error by the Reviewer himself or herself.
9. Consider “affirmative defenses,” such as (a) periods of incapacity, (b) denial of necessary resources, (c) apparent sabotage, (d) harassment/hostility, and/or (e) a higher purpose, made it impossible. When a defendant is alleged to have committed a bad act in a lawsuit, the defendant usually says, in effect, “I did not do that.” However, the defendant can also say, “I admit that I did that, BUT because of something else, it was NOT WRONG to do so.” That is called an “affirmative defense.”
Here are a few examples: Incapacity: “Yes, Tax Auditor, I failed to file my taxes on time three months ago, but I was in a coma at the time.” Coercion: “Yes, Officer, I did take the jewelry from the store, but a kidnapper had my child and said that if I did not do it, he would kill the child.” Higher Purpose: “Yes, Your Honor, I was traveling faster than the speed limit, but at the time I was bringing a seriously burned firefighter to the nearest hospital, and it was necessary to save his life.”
These and other “affirmative defenses” admit the wrongful act, but still argue against liability for doing the wrongful act. They are based in common sense, and are just as much a defense as is “I did not do the act.”
In the Performance Review context, certain “affirmative defenses” exist, too. For example, “Yes, I did not attend four client meetings out of the seven that took place, BUT I was in the hospital during each of the four meetings due to my heart condition.” Here is another “affirmative defense”: “Yes, my group did not make enough bricks to build the pyramid, BUT we were not given the straw to make the bricks.” A third one is “Yes, we did not make the required revenue target last year, BUT that is because our CEO forgot to provide the necessary approvals to close the deals necessary to make those targets.” Yet another: “Yes, we did not meet with the important client, and that upset him, BUT he repeatedly tried to molest a member of our team, and our reports of this to HR went unheeded; for safety reasons, we could not meet with him.”
10. Address possibly improper motivations, such as (a) personal animosity, (b) discrimination, or, worst of all, (c) retaliation for refusal to engage in impropriety or other acts of integrity. It is just a fact that no one – even supervisors – is perfect. No one is entirely pure of heart. No one is free from all forms and all degrees of prejudice. It is just a fact: humans are imperfect.
One aspect of human imperfection lies in the motivations we sometimes have for doing things: at times they, too, are imperfect. If you have good reason to believe that your Reviewer let his or her “imperfections” come out in the form of improper motivations for giving you a negative Performance Review, now is the time and place to raise that concern.
Please do not say to yourself, or write “I am a woman,” or “I am a Jew,” or “I am an older person,” and for this reason, alone, my Performance Reviewer must have been prejudiced in my review. And please do not say or write “I am not a buddy of the Reviewer, so she must have been targeting me as part of animosity.” And just because you reported wrongdoing, that – alone – does not mean that your Performance Review is an act of retaliation.
But that doesn’t mean it isn’t, either.
If you can identify other facts, acts, events or circumstances, that might lead others to say, “Yes, that makes sense – I think you are probably right about there being improper motivation(s) for your poor Performance Review.” Try to be specific, for specificity leads inexorably to credibility, and lack of specificity leads others to doubt your view. Watch, in particular, for telltale words; for example, a supervisor continually referring to women as “girls” or to female parts of the body would likely convince many people that there may be present either gender discrimination or sexual harassment at work.
11. Consider whether others have faced or reported similar problems with your Reviewer. Imagine, just for the moment, that you learn that over the past four years nine of your colleagues have also experienced false, dishonest, or mistaken Performance Reviews from this Reviewer, and each was later found to be correct in their rebuttals. Surely, this circumstance would suggest that your similar concern has a greater likelihood of being found to be correct, and therefore believed, too. You might ask around about such things, but if you do so, do it discreetly.
12. Ponder who you may find to be a Supportive Colleague, a Pleased Customer, or a Happy Higher-Up. If many others view your performance as positive, maybe your Reviewer does, in fact, have it wrong. Having others – especially influential others – vouch for your good performance can only help. Ponder who that may be, and consider asking them for a simple email expressing their satisfaction, if not joy, with the results of your work. Though it is a sensitive topic, if it helps keep you employed, or helps you get a better bonus, or even makes a transfer possible, it may just be worth the effort.
13. Avoid the use of personal invective and criticisms. Even if you believe “This is personal,” you must not permit your Rebuttal to make it appear that you are getting down to that level. Keep your words and phrases impersonal and professional. Do not write “Bob lied when he wrote . . .” but instead, “The review is mistaken when it says. . . ” Try not to use the words “he, she, they, us, or them.” Instead, use the words “the Review,” or “the Reviewer.” Keep it cool, calm and professional; no personal invective, even if it is warranted. Just one “poison arrow” can kill your credibility, obscure your arguments, and turn your readers off. Don’t do it.
14. Gather your thoughts into a Performance Review Rebuttal which is a respectful, reasoned and focused response. If you have carefully considered the steps outlined above, putting together an effective Performance Review Rebuttal should be an easier task than you might have imagined. The most salient points you can raise are probably above, for you to use and adapt to your own situation. Of course, it is possible that your biggest issue is not listed above. Even then, I expect you will now be better equipped to respond with respect, clarity, focus, organization, effect, and confidence.
If at all possible, your Performance Review Rebuttal should be no more than two or three pages. It should be a reasoned approach, leading the reader to view you to be respectful, rational and reasonable, and for those reasons, come away from reading your rebuttal convinced that “Surely, something is amiss.”
While you are writing, bear in mind that the goals of your efforts are to (1) correct the “record,” (2) to prevent any negative consequences from it, and (3) to show you are capable of protecting yourself. The first is important for the present; the second and third are important for the future. Note, too, that “getting even” is not one of your goals.
15. You may make a request for a “review of the review,” a correction preferably by a completely new Performance Review, or a different Overall Rating. Keeping in mind the overall goals of your effort, and the facts before you, it is always good to be clear toward the end of your Performance Review Rebuttal about what you would like to happen, and why. You may want (i) a correction, (ii) your Rebuttal attached, (iii) a whole new Review, (iv) a different boss by means of a transfer, or (v) perhaps a severance package, or 100 other different things. That’s quite personal to you. Just make sure you have given considerable thought to what it is you want, and that you respectfully request it. If your goal is a severance package, you may want to review our many articles, Q&A’s and videos on our blogsite’s Resource Center. To do so, just [click here.]
We offer a Model Memo entitled “Performance Review Rebuttal” that you can use as a model for your own efforts. To obtain a copy, simply [click here.]
16. Then transmit your Performance Review Rebuttal to your best “target,” usually either one or more of (i) your Reviewer, (ii) his/her manager, and (iii) your Human Resources Representative. Email is your friend. Always use email at work to transmit important communications, including this one. Email makes a clear record of (a) what was said, (b) who said it, (c) to whom, and (d) when it was said. While your “target” is a matter of choice, how you send it is not. Ask that your recipient(s) acknowledge receipt of your Performance Review Rebuttal by means of a reply email. And ask, too, for a response within a reasonable period of time, usually seven to ten working days.
These 16 Effective Steps to a Robust Rebuttal to a problematic Performance Review together constitute a mindful and proper response. While nothing can be guaranteed as to the result of your efforts, what is guaranteed is that learning how to stand up for yourself – and thus for your career and your family – is what you need to do in the modern world of working. We also guarantee that this approach – respectful, reasoned, focused, hitting the important points, and being clear about what you believe needs to be done to correct the problem – is the best approach there is.
We also offer a 198-point Guide and Checklist to Responding Effectively to Your Performance Review. To obtain a copy, simply [click here.]
SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work. Negotiation of work and career issues requires that you think “out of the box,” and build value and avoid risks at every point in your career. Problematic Performance Reviews arrive in your email mailbox when you least expect them. With these 16 Steps, you’re prepared to effectively Rebut. Now the rest is up to you.
Always be proactive. Always be creative. Always be persistent. Always be vigilant. And always do what you can to achieve for yourself, your family, and your career. Take all available steps to increase and secure employment “rewards” and eliminate or reduce employment “risks.” That’s what SkloverWorkingWisdom™ is all about.
*A note about our Actual Case Histories: In order to preserve client confidences, and protect client identities, we alter certain facts, including the name, age, gender, position, date, geographical location, and industry of our clients. The essential facts, the point illustrated and the lesson to be learned, remain actual.
Please Note: This Newsletter is not legal advice, but only an effort to provide generalized information about important topics related to employment and the law. Legal advice can only be rendered after formal retention of counsel, and must take into account the facts and circumstances of a particular case. Those in need of legal advice, counsel or representation should retain competent legal counsel licensed to practice law in their locale.
Performance Review Coming Up? Make Sure It is Best Possible
Model Memo: To Enhance Your Upcoming Performance Review
“What to Say / How to Say It.™” Just [click here.]
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© 2012 Alan L. Sklover, All Rights Reserved.