Fourth Amendment

Why is it highly advisable for employers to conduct performance appraisals and to maintain credible, written documentation of performance? The policy of any employer to conduct performance appraisals among its employees is not only a sound management practice to monitor and promote productivity but also to protect the company’s right in case termination of employment is highly advisable. Every employee has the right to security of tenure. But this security of tenure is conditioned upon good performance which is subject to standards set by an employer.

Good performance cannot be a subjective, whimsical and arbitrary judgment of any employer. The management prerogative to discipline any employee is subject to the condition that lawful requirements are complied with. Notice and opportunity to be heard are requirements of the law. Any employee has the right to be notified of any condition that would affect security of tenure. Thus, where an employee’s performance falls below the standards, the employer must show proof of such poor performance.

In order to do this, the employer has to show that an appropriate monitoring scheme is in place. Moreover, the employer has to show that a timely feedback of the employee’s performance is made. This feedback is shown through the conduct of a regular performance appraisal. It is through this mechanism that the employee is notified that his performance is below par and that he has the obligation to improve his performance in order not to face the consequences of termination.

Without this performance appraisal, the employer has no right to terminate an employee from work. The spirit of the law provides for correction of behavior and performance. It does not grant outright termination. Thus, a proper documentation of the performance appraisal would be the sufficient basis for terminating an employee who continuously exhibits poor performance. Otherwise, the employee may rightfully claim that termination violates his right to security of tenure.

A research analyst for the Indiana Department of Corrections was told that she would have to submit to a psychological examination in order to keep her job. She took the exam, which lasted two hours and contained many questions related to details of her personal life. She sued, claiming that the test violated her constitutional rights. What should the court decide (your opinion)? Why? After writing your initial thoughts, use the Internet to look up the case. What was the actual decision and why? (Greenawalt v. Indiana Department of Corrections, 397 F. 3d 587 [7th Cir. 2005])

A psychological examination is conditioned upon the fact that one’s experiences in life play an important role in how one conducts himself towards people and situations. Thus, any psychological examination is based on the personal preferences, personal circumstances, personal experiences, personal interests, and personal attitude of the subject. It is in this context that psychological examination and its results are held in confidence and no psychometrician or counselor could divulge its results without exposing himself or herself to violating the Fourth Amendment, which grants the right to privacy.

Otherwise, without the ascertainment and evaluation of the person’s circumstances in life, a psychological examination would be a failure and it would not truly reflect the person’s potentials and attributes. In the case of Kristin A. Greenawalt, a researcher in the Department of Corrections of Indiana, she was compelled to take a psychological examination conditioned upon her security of tenure.

Greenawalt subjected herself to the psychological examination and thereafter filed a suit for violation of her privacy and a denial of her right under the Fourth Amendment. The court decided the case by affirming that the provisions of the Fourth Amendment cannot be overextended to include such exercise as a psychological examination where the subject may rightfully decline to take and where any such subject may rightfully refuse to answer questions which are obtrusive and offensive.