Performance Appraisals: Oklahoma
Federal law and guidance on this subject should be reviewed together with this section.
Authors: Allen L. Hutson and Randall J. Snapp, Crowe & Dunlevy
- Generally, employers can be held liable for torts, or claims based on wrongful acts, in the scope of the employment relationship. Possible employee claims include defamation and intentional infliction of emotional distress. See Employer Liability Regarding Performance Appraisals.
- Oklahoma law protects information regarding job performance in certain situations, allowing a current or previous employer to provide information regarding employees to potential employers of such employee. See Employer Liability Regarding Performance Appraisals and Job Performance Disclosures Under Oklahoma Law.
- Oklahoma law provides guidelines prohibiting discrimination against age, race, sex, and disability in the employment setting through the Oklahoma Anti-Discrimination Act. See Performance Appraisals and Discrimination.
- Oklahoma prohibits retaliation against employees who engage in protected activities. See Performance Appraisals and Retaliation.
- Oklahoma law recognizes a common law cause of action for negligent hiring, supervising, or retaining employees. See Negligent Retention.
Employer Liability Regarding Performance Appraisals
Oklahoma has not specifically addressed liability issues in the context of performance appraisals. However, employers can generally be held liable for torts, or claims based on wrongful acts, in the scope of the employment relationship. Possible employee claims include defamation and intentional infliction of emotional distress.
Generally, under Oklahoma law, employees may file defamation claims against their employers. Defamation concerns two specific categories, libel and slander. +76 Okl. Stat. § 7.
To establish libel, the employee must show the following:
- A false and defamatory statement concerning another;
- Publication of the statement;
- Fault amounting to at least negligence of the publisher; and
- Harm resulting from the statement.
Bird Constr. Co. v. Okla. City Hous. Auth., +2005 OK CIV APP 12 (2004).
For slander, an employee must show that a "false and unprivileged communication" attributes to him or her a variety of specified implications, including statements that would smear his or her capabilities with respect to a chosen profession or trade. Zeran v. Diamond Broad., Inc., +203 F.3d 714, 718 (10th Cir. 2000).
Truth provides a defense to both types of defamation.
In Oklahoma, communication among officers, employees and agents of the corporation is never considered publication for defamation purposes. Magnolia Petroleum Co. v. Davidson, +148 P.2d 468 (Okla. 1944). Therefore, a defamation claim will only stand if the information was communicated to a source outside of the organization. This standard would make it extremely difficult for information involved with performance appraisals to constitute a defamation claim.
To minimize potential liability, employers should ensure that any communication regarding an employee's job performance be limited to those employees within the organization itself.
Intentional Infliction of Emotional Distress
Many employment-related lawsuits include a claim for intentional infliction of emotional distress (IIED). Successful IIED claims in the employer/employee context must show the following:
- The employer acted intentionally or recklessly;
- The employer's conduct was extreme and outrageous;
- The employee actually suffered emotional distress; and
- The employee's emotional distress was severe.
Daemi v. Church's Fried Chicken, Inc., +931 F.2d 1379, 1387 (10th Cir.1991).
To meet the extreme and outrageous element of IIED, the employee must show that the employer acted indecently, atrociously and intolerably. Breeden v. League Servs. Corp., +1978 OK 27 (1978).
Extreme and outrageous behavior does not include:
- Mere insults;
- Annoyances; or
Employees filing IIED claims regarding performance appraisals would be unlikely to prevail due to the stringent standards defining outrageous behavior.
Job Performance Disclosures Under Oklahoma Law
Oklahoma employers may disclose information regarding current or former employees at the request of the current or former employee, or at the request of a prospective employer of the current or former employee, and with the current or former employee's consent. +40 Okl. Stat. § 61(A). Oklahoma law presumes that such employers are acting in good faith.
Employees may show that the employer acted in bad faith by demonstrating:
- The information provided was false; and
- The employer knew of the falsity or showed reckless disregard for the falsity of the material.
Due to the nature of the job performance disclosure guidelines, employers should obtain written confirmation of consent from employees before disclosing any job performance information.
Performance Appraisals and Discrimination
The Oklahoma Anti-Discrimination Act ("OADA") provides guidelines regarding employment discrimination in Oklahoma. +25 Okl. Stat. § 1301, et seq. (§§ 1301 to 1350). Protected classifications include the following:
- National origin;
- Sex, including pregnancy and related conditions;
- Age; and
Other protected classifications under Oklahoma law include genetics, military status and tobacco use.
The OADA expands the protection of federal employment discrimination laws because the OADA covers all employers, while federal antidiscrimination laws typically cover those employers with 15 or more employees.
Under Oklahoma law, an employer violates the OADA if he or she performs any of the following actions based on protected classifications:
- Fails or refuses to hire;
- Discriminates based on compensation; or
- Discriminates regarding the terms, conditions, privileges or responsibilities of employment.
The OADA provides for individuals with disabilities. Specifically, discrimination against individuals with disabilities qualifies as a violation of the OADA unless the employer can show that providing accommodations for the disability would create an undue hardship on the business. +25 Okl. Stat. § 1303.
Furthermore, an employer is not required to retain the employee if he or she is physically unable to complete the tasks required by his or her job.
However, an employer cannot discharge an employee due to absences based on temporary total disability.
Under Oklahoma law, age discrimination claims apply only to individuals aged 40 or above. +25 Okl. Stat. § 1301(5).
However, under Oklahoma law, an employer may require an individual aged over 64 to retire if the individual is:
- In an executive or high-ranking position; and
- Is entitled to a retirement plan that exceeds $44,000.
The OADA lists religion as a protected class. +25 Okl. Stat. § 1302.
However, religious institutions may hire employees with specific religious beliefs to further the institution's religious function. +25 Okl. Stat. § 1307.
There is no specific Oklahoma law regarding employment discrimination on the basis of sexual orientation.
The OADA requires that no employer should differentiate compensation based on sex, unless the differentiations are allowed under federal law. +25 Okl. Stat. § 1311. Sexand based on sex include:
- Childbirth; and
- Related medical conditions.
However, Oklahoma allows for differentiation in annuity, death and survivors' benefits between widows and widowers of employees. +25 Okl. Stat. § 1311.
Differences in employment compensation may be based on:
- Seniority system;
- Merit system;
- System that measures earnings by quantity or quality of production; or
- Employees working in different locations.
Smoker Protection Act
Oklahoma makes it unlawful for an employer to discharge or discriminate against an employee because of smoking, nonsmoking or use of other tobacco products during nonworking hours. +40 Okl. Stat. § 500. However, an employer may encourage participation in smoking cessation programs without running afoul of the discrimination protections regarding tobacco use.
In addition, Oklahoma employers may prohibit the use of lighted tobacco products in indoor workplaces. +21 Okla. Stat. § 1247.
Performance Appraisals and Retaliation
When conducting performance appraisals, Oklahoma employers should be aware that Oklahoma law prohibits retaliation against employees who engage in protected activities, such as filing complaints under equal opportunity laws. See Employee Management > EEO - Retaliation: Oklahoma.
Additional common law and statutory protections are available to employees. See Employee Management > Employee Discipline: Oklahoma.
Oklahoma recognizes a common law claim for negligent hiring, supervision and retention in situations that do not involve vicarious liability. See N.H. v. Presbyterian Church (U.S.A.), +1999 OK 88 (1999). Vicarious liability results if an employer is held liable for the acts of an employee.
An employer may be liable for negligent retention if it had reason to believe the employee would create an undue risk of harm to others. Employers are only liable for negligently failing to recognize the employee's predisposition to harm similar to the harm that actually occurred. See N.H. v. Presbyterian Church (U.S.A.), +1999 OK 88 (1999).
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