Similar to this regulation, it can be seen from the performance appraisal system of many enterprises in the past. However, with the implementation of the Labor Contract Law, if this practice is not adjusted in time, enterprises will face the risk of legal proceedings.
On the one hand, the human resource management of enterprises should consider how to improve labor productivity, on the other hand, it should also meet the requirements of laws and regulations. In the past, the human resources management of many enterprises often paid too little attention to the latter, or even did not consider legal factors at all, ignoring that the bottom line of all regulations and measures was national laws. However, with the promulgation and implementation of the Labor Contract Law, human resource management will be subject to many legal restrictions, which requires enterprises to make corresponding adjustments in time.
Performance management is one of the core contents of human resource management. Although the Labor Contract Law does not directly stipulate performance management, the results of performance appraisal will affect personnel decisions such as salary adjustment, post adjustment and dismissal, and then involve the performance, change and dissolution of labor contracts. Therefore, the provisions on the performance, alteration and connection of labor contracts in the Labor Contract Law will inevitably have an impact on the design of performance management system.
1. The Labor Contract Law puts forward higher requirements for the performance management system.
In fact, the influence of labor contract law on performance management is mainly reflected in the handling of employees with poor performance. Performance management should achieve the goal of rewarding the superior and punishing the inferior and revitalizing human resources. Generally speaking, there is no legal risk in rewarding excellent employees, but punishing inferior employees, especially unqualified employees, will encounter many obstacles under the labor contract law. In the previous performance management system, enterprises often unilaterally adjust their posts or even dismiss employees with poor performance appraisal results, but after the implementation of the Labor Contract Law, this method has been ineffective.
The Labor Contract Law has strict restrictions on the modification of the contract by enterprises, which requires the enterprises and workers to reach an agreement through consultation, and it must be in written form. There are also strict restrictions on the termination of the contract, which can only be terminated under legal circumstances. This kind of regulation is conducive to protecting workers from arbitrary post adjustment and salary adjustment by enterprises, ensuring the smooth performance of labor contracts and maintaining the stability of labor relations. However, on the other hand, this regulation also restricts the performance management of enterprises (especially the application of assessment results). There is only one exception in the Labor Contract Law that strictly restricts an enterprise from changing the contract, that is, when an employee is proved incompetent, the enterprise has the right to unilaterally change or even terminate the labor contract, which actually puts forward higher requirements for the performance management of the enterprise-sufficient evidence must be provided to prove that the employee is "incompetent".
Post adjustment-must be justified
For employees with poor performance, companies often unilaterally adjust their positions. Adjust the underperforming employees to more suitable positions. In this post adjustment, labor remuneration is often adjusted at the same time. To this end, many enterprises stipulate in their labor contracts that employees' jobs can be adjusted according to their performance and business needs. This practice has a certain operating space in the original legal environment. However, after the implementation of the Labor Contract Law, the adjustment of workers' jobs by enterprises will be strictly restricted.
Article 35 of the Labor Contract Law stipulates that the employer and the employee may change the contents of the labor contract through consultation. Changes to the labor contract shall be made in written form. The revised text of the labor contract shall be held by the employer and the employee respectively.
The adjustment of post involves the change of labor contract. The first condition for changing the labor contract is that both parties reach an agreement through consultation. It is illegal for either party to unilaterally change the labor contract without consulting the other party. In reality, most of the changes in labor contracts are proposed by enterprises. Enterprises should correct the wrong concept of contract change that "enterprises have the autonomy to change contracts" and cannot unilaterally and forcibly change labor contracts.
The Labor Contract Law only allows the employing unit to change the labor contract and rearrange the work of the employee when the employee is incompetent. This requires that the performance appraisal system of enterprises must have sufficient evidence of employees' "incompetence".
Dismissal-it must be justified and have a good reason.
The Labor Contract Law stipulates that an enterprise may terminate the labor contract if the employee is incompetent after training or job adjustment. According to this regulation, three conditions need to be met to terminate the labor contract on the grounds of incompetence: the worker is proved incompetent and still incompetent after training or adjustment.
According to article 13 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases, the enterprise shall bear the burden of proof for labor disputes arising from the decisions made by the employer, such as dismissal, dismissal, dissolution of labor contracts, reduction of labor remuneration, and calculation of the working years of workers. In other words, the enterprise bears the burden of proof to terminate the labor contract, so the enterprise needs to prove that the employee is "incompetent", "trained or adjusted" and "still incompetent" to terminate the labor contract, and bears the burden of proof three times. This also requires that the performance appraisal system of enterprises should have sufficient evidence to prove that employees are "incompetent" and "still incompetent" after training or post adjustment.
In addition, the Labor Contract Law stipulates that enterprises should stipulate labor remuneration in the labor contract, which forces enterprises to stipulate wage standards in the labor contract. Once agreed, the enterprise cannot adjust itself, but human resource management needs to ensure the autonomy of the enterprise in salary. In order to keep the balance between legal provisions and human resource management, enterprises will inevitably increase the proportion of performance salary increase, floating salary and long-term incentive in specific operations, which also puts forward higher requirements for performance management.
Second, the performance management system design under the labor contract law
1. Formulation of performance plan
The basis of performance planning is job analysis. In performance management, the main basis for evaluating employees' performance is pre-set assessment indicators, and the content of assessment indicators largely comes from job descriptions formed through job analysis. Using job descriptions to formulate assessment indicators can make performance management more scientific and targeted. A clear job description can make employees know what their job responsibilities are and what requirements they should meet in their work, and it is also an important evidence in labor disputes. Some foreign scholars have studied the legal cases caused by performance appraisal, and in the past 1976, they found six factors that made the organization win in such cases. The most important factor is that enterprises must affirm that the content of performance appraisal is really based on job analysis, performance standards are related to work, and the content of evaluation is specific work content, not the opinions of appraisers or supervisors.
The formulation of performance goals should be communicated with employees and confirmed by employees. The performance targets set by enterprises should be clearly told to workers. When dealing with labor disputes, enterprises have to bear the burden of proof in many cases. If an enterprise punishes its workers for failing to achieve the performance goals, it must first prove that the performance goals have been informed to the workers. Enterprises can communicate with workers in the process of performance planning and coach feedback. In order to reduce legal risks, enterprises can require employees to sign relevant written documents in the process of performance planning and coach feedback, so as to prove their understanding and recognition of performance goals.
Performance indicators should be quantified or regularized to improve the measurability of evaluation indicators. When designing assessment indicators, enterprises should avoid using abstract indicators, such as "loyalty" or "honesty", unless they can be defined by quantitative data or observable behavior. In labor disputes, quantitative or behavioral analysis of performance is easy to become legal evidence, and subjective evaluation that cannot be quantified or behavioral is difficult to be adopted by judicial departments. At the same time, performance appraisal indicators should include multiple independent indicators. For the judicial department, it is not feasible to have only a general and vague performance evaluation index. The judicial department generally requires that these independent evaluations be integrated and weighted, so as to get a total score.
2. Collection of performance information
Attention should be paid to collecting performance information from various channels. Performance appraisal is an appraisal activity, so we must pay attention to evidence, so that employees' performance can be truly and concretely reflected and become the most favorable evidence for employees' behavior to meet performance standards. Performance information collection is a process of performance monitoring and evidence collection. The evidence prescribed by law includes documentary evidence, physical evidence, audio-visual materials, witness testimony, statements of the parties, expert conclusions, records of inspection and other forms. The proof function of all kinds of evidence is different. According to the regulations of the Supreme People's Court, the probative power of physical evidence, archives, expert conclusions, inspection records or notarized and registered documentary evidence is greater than other documentary evidence, audio-visual materials and witness testimony; The testimony provided by witnesses that is beneficial to their relatives or other closely related parties is generally not as probative as the testimony of other witnesses. Many enterprises let employees be witnesses or provide testimony in labor disputes, but it is often difficult to get the approval of the dispute handling department. Because employees provide labor for the unit and get paid, there is a certain interest relationship between them. When employees provide favorable testimony for the unit, its proof effect is low. Due to the difficulty of proof, the failure rate of enterprises is high. In judicial practice, customers' opinions can be used as the basis for judging whether they are incompetent, but the evaluation of superiors to subordinates is difficult to be adopted by judicial departments. This requires enterprises to pay attention to obtaining performance information through different information channels, especially through third parties such as customers and suppliers. It is worth noting that, no matter through what channels, it is very important for the evaluator to have daily and substantive contact with the appraisee. And let as many evaluators independently complete the same job performance evaluation as possible, which can reduce personal prejudice and mistakes. In judicial practice, a single evaluator's decision on a person's behavior often leads to the failure of the enterprise.
Auxiliary materials should be collected during performance implementation. Because enterprises bear the burden of proof in labor disputes, auxiliary materials that can be used as evidence should be collected as much as possible in the evaluation process, such as employee performance reports and customer complaint letters. Before the inspection, employees may be required to submit task reports or regular debriefing, and all reports shall be in written form and signed by employees. Employees with poor performance can make excuses and explanations in performance evaluation. Enterprises can ask employees to explain in writing, or they can explain and explain in the way that conversation record requires employees to sign and confirm, which can be used as evidence in dispute settlement.
Performance data should be confirmed by employees. Enterprises should require employees to sign the performance appraisal documents to prove that employees recognize the performance appraisal results. Employees with poor assessment results often refuse to sign the assessment conclusion. Therefore, enterprises can divide the process of performance evaluation into two steps: fact investigation and nature identification, and it is not necessary to draw an evaluation conclusion immediately after the performance data collection is completed. Enterprises can first ask employees to sign and confirm the specific facts and data collected. After the employee confirms the basic facts, the enterprise can draw the assessment conclusion whether it is competent or not according to the facts confirmed by the employee.
3. Selection of performance evaluation methods.
Performance evaluation technology is easier to get legal support. In terms of assessment methods, in recent years, assessment methods such as target management, key performance indicators and balanced scorecard have become popular in many domestic enterprises, but enterprises often ignore the application of performance assessment techniques such as chart scale assessment, behavior anchoring and behavior observation scale. In fact, from the development of performance management in western enterprises, target management, key performance indicators and balanced scorecard are all strategic performance appraisal tools, which can combine the performance of employees with the strategy of the whole organization and make the improvement of individual performance point to the performance of the whole organization. However, the implementation of strategic performance management tools can not be separated from the support of performance evaluation methods and technologies. Many performance evaluation techniques, such as behavior anchoring method and behavior observation scale method, establish a unified evaluation standard for the evaluator by directly providing the specific scale and evaluation standard of behavior grade to the evaluator. They are not only helpful for managers to evaluate employees objectively and effectively, but also helpful for guiding and developing employees' behavior. In legal proceedings, a scientific and reasonable technical system of performance evaluation is more likely to gain legal support and recognition.
There are great legal risks in the assessment method based on employee comparison. The assessment methods based on employee comparison, such as compulsory distribution method, especially the last elimination method, cannot be supported by law under the background of the implementation of the Labor Contract Law. Enterprises must be clear about a concept, and the bottom of performance appraisal does not mean incompetence. In the competition of 10 workers, 10 people may be competent for the job, but there is always a bottom; Maybe 10 people are incompetent, even if they rank first, they don't meet the job requirements. Therefore, the assessment method based on employee comparison is difficult to prove whether employees are competent for the job. It can be seen from the judicial practice in western countries that enterprises adopting this evaluation method face greater legal risks and often become the object of legal proceedings. For example, Ford once divided middle managers into three grades: A, B and C according to the results of performance appraisal. Managers who are rated as C within one year will not receive any bonus; If a middle manager is rated as C for two years in a row, it means that this person is likely to be demoted or fired. Every year, the company ranks 10% middle managers as C-level. This performance evaluation method of Ford Motor Company has made it a defendant in many legal proceedings. Later, Ford Motor Company had to change some main contents of its original performance management process, including: a fixed proportion of managers must be classified as Grade C every year, and the managers classified as Grade C not only won't get any bonus and performance salary increase, but also may lose their jobs. Now, the number of managers who must be included in the C level has dropped to 5% every year. The original A, B and C levels have also been replaced by expressions such as "high performers", "those whose performance has reached the standard" and "those whose performance needs to be improved". Employees who are rated as "those whose performance needs to be improved" can also get relevant guidance and consultation aimed at helping them improve their performance.
4. Safeguards for fair evaluation.
Managers should be trained in performance evaluation. Performance evaluation is a highly emotional process. In the process of identification, the appraiser will inevitably be influenced by subjective factors, which will lead to the deviation of identification. The way to reduce the error caused by subjective factors of appraisers is to train appraisers. At least provide the appraisers with written instructions on how to use the performance evaluation system, including how to use the performance evaluation criteria when making judgments, rather than simply giving them to explain how to conduct performance evaluation.
Establish a review and appeal system for performance appraisal. The top managers of enterprises should review all the performance evaluation results in some form, and at the same time, they should establish a system to allow employees to complain about the evaluation results that they think are unfair. In other words, before the evaluation results are finalized, employees have the right to review and comment on their evaluation results in written or oral form, and enterprises should establish formal appeal channels for employees.