Performance Appraisals: California

Federal law and guidance on this subject should be reviewed together with this section.

Author: Lois B. Voelz, Cooley LLP

Summary

• Generally, California law does not restrict private communications involving opinions, such as performance appraisals, particularly when those communications are truthful, reasonable, businesslike, and kept confidential between management and the employee. See Employer Liability Regarding Performance Appraisals.
• With respect to performance appraisals, employees may file claims based on intentional infliction of emotional distress and defamation. However, employers have a number of defenses to these claims. In addition, California law provides a qualified privilege for certain communications regarding job performance. See Employer Liability Regarding Performance Appraisals.
• California has laws requiring equal pay for equal work, and prohibiting employment discrimination on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, pregnancy, gender, gender identity, gender expression, sexual orientation and age, among other categories. These employee protections should be kept in mind when evaluating job performance. See Performance Appraisals and Discrimination.
• California law prohibits employers from retaliating against employees for engaging in protected activities, e.g., whistleblowing. See Performance Appraisals and Retaliation.
• California law allows individuals to bring claims for negligent retention of an employee under some circumstances, including the employer's knowledge that the employee is incompetent, unfit or likely to cause harm, subjects typically covered in a performance appraisal. See Negligent Retention.
• California law imposes recordkeeping retention obligations that pertain to performance appraisals. See Employer's Recordkeeping Obligations for Performance Records.
• Employees in California have the right to inspect performance appraisal records maintained by the employer. See Employer's Recordkeeping Obligations for Performance Records.
• California employees have a privacy interest in records of their performance, and obligations arise for employers when such records are sought by parties to litigation. See Employer's Recordkeeping Obligations for Performance Records.