In almost every case of employment discrimination involving termination, the issue of performance comes up at some point. Attorneys, courts, plaintiffs, and defendants all want to know the record of how an employee was judged, how a worker matched up to his or her peers, and eventually, whether adverse employment action was warranted and preceded by fair warning.

Attorneys interviewed by Employment Law Weekly, an affiliate of Law News Network, emphasized that performance reviews may be used in litigation, but their primary purpose is to serve a business need. Tips for handling the evaluation of poor performers, liability holes to watch out for, and strategies and safeguards for the courtroom were prefaced with a call to remove the “over-lawyering” aspect of performance reviews and instead focus on the intended business purpose.

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