I work for a large company in MA employing about 500 workers. Performance evaluations are based on a rating system 1-5, 1 being a poor worker, 5 being exceptional. My company is using two versions of the same form for the evaluations. In one version a rating of 3 would be a rating of 4 in the other version. A worker receiving a rating of 3 is denied a wage increase. Had that same worker been given the evaluation with the other version, the rating would be a 4 and a raise would be given. Is it legal to have two versions of the same evaluation that give different numerical results?

I work for a large company in MA employing about 500 workers. Performance evaluations are based on a rating system 1-5, 1 being a poor worker, 5 being exceptional. My company is using two versions of the same form for the evaluations. In one version a rating of 3 would be a rating of 4 in the other version. A worker receiving a rating of 3 is denied a wage increase. Had that same worker been given the evaluation with the other version, the rating would be a 4 and a raise would be given. Is it legal to have two versions of the same evaluation that give different numerical results?


Company evaluations and their raise practices are not mandated by law. While it may not seem fair, it is not illegal.

I agree with Sue...as long as the differences are not based on illegal discrimination. For example, it is not discriminatory to say that all persons in one job classification has one form and all persons in another job classification uses another. However, if it is said that all US citizens are subject to one evaluation and all non-US citizens are subject to another evaluation, that is illegal.

Using a different form because the form has been changed, policies have been changed, etc., is not illegal...unless it appears that all of one legally protected class (such as race, gender, religion, national origin, age, etc.) are adversely affected significantly more than others not in the protect class.

Let us know if we can answer additional questions for you.

This is not a case of all employees in one classification receiving one version and all in another receiving the other. A supervisor can use either version with the same group of employees. The supervsor can determine and I would say manipulate the outcome before the evaluation is even given. The end result is not based on performance, but rather on which version the supervisor chose to use. This is like giving an exam where one version has a high grade of A and the other version of the same test has a high grade of B. By the way, the existence of these two versions is not common knowledge to the workforce. As a matter of fact, the employer touts how fair this system is because it is based on mathematical scoring. This would potentially be true if only one version was applied to everyone. Can a supervisor pick and choose who will get a higher rating depending on which version is used and not on their actual performance?

Yes, so long as the reason is not based on illegal discrimination.

Well, I guess that's the ultimate question. Having been employed for 25 years by this company and never encountering this before, leads one to question why now. Has my age become an issue? Workers younger than me in my department were not given the same version as me and thus received the higher rating.

If you can get PROOF of that through statements from these employees AND get it in writing, then you have a starting point for discrimination.

Have you talked to management as to why they used a different form for you? If so, document anything you are told from here on in.

I have copies from my co-workers. This was how we discovered there are two versions. Prior to learning this, I met with my supervisor to discuss why my Employee Salary Communication came back "No action at this time". He was very apologetic and explained it was all based on mathematics. My numeric rating factored with my current earnings put me in a quadrant that the computer, who he claimed decided this, deemed the result to be "No action at this time". Now knowing of the two versions, I feel his explanation was a bunch of gobbly-gook. I have a meeting scheduled next week with my supervisor, manager, and HR representative. They are unaware that I have learned of the two versions. I plan to take lots of notes and hope to get the meeting documented.

Sounds like you are headed in the right direction...i.e. taking notes, and setting up that meeting. Get them to state their reasons, put it on their shoulders to tell you what their method is. If they try to hide the fact there are two forms of review, that would be pretty indicative they are being discriminatory towards you, but the reason may or may not be age...that is the tough part. You would need to show that.

However, I am not sure pay increases are a legal issue since they are at the discretion of the employee. Termination and promotions are not to be based on age, sex, creed, etc.

I will check more into pay increases in the meantime on my end.

Best Wishes!
Sue

The pay increase is not my main concern. These evaluations are also used to determine who goes and who stays. My lower rating now puts me in jeopardy of being the one chosen.

Discrimination applies to any employment action...pay increases and performance evaluations included.

Federal law protects persons who are 40 and over from being treated differently than those younger. While your employer may have a mathmatical formula that causes you to have a different review form, if it can be shown that the formula is primarily discriminatory against those who are over 40, it is illegal. That is a concept called "disparate impact". Disparate impact is a little more difficult to prove. However, if you get to the point where you want to file a claim against your employer with a federal or state agency, the federal and state agency will ask your employer for data to prove that the formula does not have a disparate impact upon persons who are 40 and over.

Before getting to that point, however, I would strongly suggest you raise the issue with the HR department. In my opinion, it is always far better to try to resolve the issue internally, before going to outside parties. By giving your employer a chance to correct itself, it can result in a faster, smoother way to resolving this issue for you.

Best of luck to you and let me know if you have any additional questions.

Silkie,

I understand your dilemna. You may want to schedule a free consulation with an employment attorney now to see what steps you need to take and what "evidence" you need.

Since you have not been terminated, no action has really been taken yet other than this review. You already have a meeting set up with your higher ups so that is a good thing.

You are also documenting everything as well, which is necessary for your "case."

Keep me posted on your progress.

As I stated earlier, termination based on age is illegal, and that is where an attorney comes in.

Sue