Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Performance Reviews

Public sector employees in Minnesota may now challenge their performance reviews.  A ruling this summer by the Minnesota Supreme Court, affirming a decision of the court of appeals, held that the accuracy and completeness of such job reviews in a proceeding before the Department of Administration could be challenged in Schwanke v. Minnesota Dept. of Administration, 851 N.W.2d 591 (Minn. 2014).  Although these reviews are laden with opinions, the underlying facts upon which the evaluations are based may be contested before an administrative law judge (ALJ), who makes a recommendation to the department.

Workers in the private sector generally may not challenge performance evaluations, unless they are members of unions with provisions in collective bargaining agreements allowing employees to dispute or grieve them or, in rare instances, are employed by companies with policies permitting such challenges.  The only remedy for the vast bulk of private sector workers in Minnesota, unless they can get their bosses to modify their reviews, is to place their own unilateral statement in their personnel file, pursuant to Minn. Stat. §181.962, subd. 1, which entitles employees to state their responses to negative remarks in personnel reviews in a document not exceeding five pages to be placed in their personnel files, along with the other materials.

For government workers and their advocates, the Schwanke ruling is a vehicle to effectively contest evaluations that can affect workplace decisions, including promotions, demotions, and as a step in the disciplinary process.  They should try to muster as much evidence as possible in contesting adverse reviews by showing the underlying factual bases are incorrect or incomplete.

Governmental bodies and their advocates may seek legislative changes to overcome the ruling.  They also can present testimony and documents to an ALJ showing the validity of the review process, emphasizing the broad discretion generally accorded supervisors in evaluating personnel.

Marshall H. Tanick

Hellmuth & Johnson, PLLC



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