Management Rights - AELE's Home Page

Employee Performance 17-3
The most frequently challenged aspect of employee evaluations involves
the terms categorizing the employee’s performance. For example, in
Massachusetts Department of Public Welfare, an employee complained
when her evaluation rated her performance as “meeting” expectations. 26
The employer’s evaluation procedure rated employees as “below,” “meets,”
or “exceeds” standards. The employee argued that the evaluation caused
her to be denied bonus money, and sought to gain access to other
employee evaluations to determine whether similarly situated employees
had been evaluated in a like manner. The hearing officer determined that
the employee could see these other evaluations, and stated that it was
unwise to rate employees according to such a limited scale. 27
Federal and state cases indicate that performance evaluations will most
likely be upheld if the following guidelines are followed:
use standardized evaluation forms, 28
conduct annual evaluations, 29
have face-to-face meetings between evaluators and the
employee to discuss the review, 30
use only objective facts (as much as possible) when forming
conclusions, 31
write down everything relevant to the evaluations, 32
avoid general and ambiguous phrases such as
“unsatisfactory” without elaborating; 33 and
do not consider facts which are outside the agreed upon
performance criteria. 34
Employers often use various types of tests--including drug, and
psychological tests--to measure an employee’s fitness for the job. If used
in the course of employment without prior agreement by the union, such
tests may be instituted only if the employer bargains with the union to
impasse first. 35 However, if the tests are administered to an employee in
the course of a criminal investigation, e.g., polygraph, prior bargaining is
not required. 36
Psychological tests are employed to evaluate both applicants 37 and current
employees. While management has the prerogative to implement such
tests, except when use exclusively for applicants, it must first bargain over
the impact on current employees with the union. 38 The use of
psychological tests has been challenged on a variety of legal grounds.
First, it was alleged that such tests violated constitutional First
Amendment and privacy rights. 39 In the case of public safety personnel,
at least one appellate court has determined that a state has a sufficiently
Massachusetts Municipal Police Training Committee