Performance Appraisals: Pennsylvania
Federal law and guidance on this subject should be reviewed together with this section.
Author: Michael R. Galey, Fisher Phillips
- Employers are not required to give their employees performance appraisals under Pennsylvania law. See Conducting Performance Appraisals.
- Employers may not take into consideration an employee's membership in a protected class, or engagement in a protected activity, when completing a performance appraisal. See Performance Appraisals and Discrimination.
- Pennsylvania employers enjoy qualified immunity from employee claims with respect to job references or disclosing information about a current or former employee's job performance. See Defamation Claims.
Conducting Performance Appraisals
Employers are not required to give their employees performance appraisals under Pennsylvania law. However, performance appraisals can be an effective tool to track and manage an employee's long-term performance. Employers should:
- Honestly evaluate an employee's performance; and
- Provide the employee with constructive criticism for both the employee and the employer's benefit.
Performance appraisals can be structured in any way that makes sense to an employer from a business perspective, including providing employees with introductory reviews upon an employee's joining the organization (usually occurring at the conclusion of a 60- or 90-day probationary period).
Performance appraisals are distinct from documentation related to employee discipline and should be used separate and apart from disciplinary documentation. Whereas only employees warranting discipline will receive documented disciplinary notices, all employees should receive performance reviews if an employer chooses to implement a performance review process.
Performance Appraisals and Discrimination
Employers may not take into consideration an employee's membership in a protected class when completing a performance appraisal. Negative reviews for individuals in a protected class may carry a risk that the appraisals will be perceived as discriminatory. See EEO - Discrimination: Pennsylvania.
The Pennsylvania Human Relations Act (PHRA) supplements the protections offered by federal law. The PHRA prohibits employment discrimination on the basis of:
- Religious creed;
- Age, 40 years or older;
- National origin;
- Non-job related disability; or
- Use of guide or support animals because of blindness, deafness or physical disability of the user.
A number of local ordinances may also expand covered employers or protected classifications, including the Philadelphia Fair Practices Ordinance and the Pittsburgh City Code. +Pittsburgh, Pennsylvania Code of Ordinances § 651.04; +Pittsburgh, Pennsylvania Code of Ordinances § 659.02.
An employer may not use a performance appraisal as a mechanism for retaliating against an employee for engaging in a protected activity.
Pennsylvania law protects employees who engage in certain protected activities. Employers should use caution when addressing poor performance issues with the following employees:
- Those who have filed workers' compensation claims. +77 P.S. § 1;
- Those who are politically active. +25 P.S. § 3547;
- Those filing a wage complaint. +43 P.S. § 333.112; and
- Those public employees who have engaged in whistleblower activity protected under Pennsylvania's Whistleblower Law. +43 P.S. § 1423.
Access to Personnel Files
Pennsylvania employees are entitled to access documentation included in their personnel files, including performance appraisals, under the Personnel File Inspection Act. +43 P.S. § 1321.
Employers in certain sectors should ensure personnel files are adequately maintained. For example, a university professor's peer reports constitute performance reviews under Pennsylvania law and, therefore, should be made available for inspection. See Pennsylvania State University v. Commonwealth, Dep"t of Labor & Industry, Bureau of Labor Standards, +113 Pa. Commw. 119 (1988).
To establish a defamation claim, an employee in Pennsylvania must show the following:
- Defamatory character of the communication;
- Publication by the employer;
- Application to the employee;
- An understanding by the reader or listener of an intent by the employer that the statement refer to the employee;
- Special harm resulting to the employee from the publication; and
- Abuse of a conditionally privileged occasion.
An employer may defend against a claim of defamation by proving:
- The truth of the alleged defamatory communication;
- The privileged character of the occasion on which it was published; or
- The character of the subject matter of the defamatory comment was of public concern.
Pennsylvania employers also enjoy qualified immunity from employee claims with respect to job references or disclosing information about a current or former employee's job performance. +42 Pa. Cons. Stat. § 8340.1. This information is protected unless an employee can show, with reasonable certainty, that the employer disclosed information that:
- The employer knew or should have known was false;
- The employer knew was misleading;
- Was false and was communicated recklessly; or
- Was prohibited by any employee contract or right.
There are no developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.