Management of Employees

Management of Employees

Performance Reviews

Employee performance evaluations serve as a critical tool for workforce management, legal risk mitigation, and strategic planning. Employers—particularly those in healthcare and professional practice environments such as dental offices—should ensure that their performance review processes are structured to achieve their intended purposes, align with best practices, and avoid unintended legal consequences.

Employers conduct performance evaluations for various purposes, including assessing individual work performance, identifying employee strengths and developmental needs, setting professional goals, and fostering employee engagement. Evaluations also create a written record that can inform decisions about promotions, compensation, terminations, and disciplinary actions. When effectively implemented, evaluations help organizations:

  • Identify high-performing employees and those in need of additional support or training.
  • Compare performance across job functions, teams, or departments.
  • Pinpoint systemic obstacles to productivity or workplace satisfaction.
  • Track progress toward organizational goals and workforce development benchmarks.
  • Provide constructive feedback that supports employee retention and growth.

To ensure that evaluations serve these goals, employers should periodically assess whether their evaluation tools and processes are meeting their intended objectives or require adjustment to reflect current organizational priorities.

Although no Pennsylvania statute mandates the use of formal performance evaluations, written reviews often play a pivotal role in employment litigation. Evaluation documents may be introduced as evidence in claims involving discrimination, retaliation, wrongful discharge, or wage disputes. Accordingly, it is imperative that evaluations are accurate, consistent, and drafted with care.

Performance evaluation forms should:

  • Use objective, job-related criteria that reflect the essential functions of each position.
  • Encourage straightforward and candid feedback, with space for both strengths and areas for improvement.
  • Allow for narrative examples that contextualize numerical ratings or general performance descriptions.
  • Avoid vague or overly subjective language that can be misconstrued or give rise to allegations of bias.
  • Clearly communicate employer expectations, particularly in cases where performance must improve.
  • Offer employees the opportunity to provide comments or feedback, including discussion of barriers to performance and requests for professional development resources.

Evaluators should be trained to complete performance reviews in a non-discriminatory manner and to refrain from including language that may be construed as retaliatory, pretextual, or inconsistent with the employer’s overall employment practices. Consistency across similarly situated employees is particularly important to prevent claims of disparate treatment under federal or state anti-discrimination statutes.

When used systematically, performance evaluations can provide insight into workforce trends, training needs, and areas for operational improvement. Aggregated evaluation data can be useful to identify:

  • Organizational strengths and weaknesses.
  • Roles or functions requiring recruitment or restructuring.
  • Opportunities for process improvement or elimination of inefficiencies.

Evaluations can also foster two-way engagement, inviting employees to reflect on their own performance, voice concerns, or identify areas where institutional support could improve outcomes.

Schedules and Work Hours

Employers in Pennsylvania have broad discretion to set employee work schedules and hours, provided they comply with federal and state labor laws. While most private employers retain flexibility to modify schedules based on business needs, certain legal obligations and contractual arrangements may impose limits.

The federal Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq., governs minimum wage, overtime pay, and recordkeeping for most employees. Under the FLSA, employers must pay non-exempt employees overtime—at one and one-half times their regular rate—for all hours worked over 40 in a workweek. Pennsylvania law mirrors the federal standard for overtime (43 Pa. Stat. Ann. § 333.104(c)), though employers must also comply with Pennsylvania Department of Labor & Industry regulations concerning wage payment and recordkeeping.

Employers are not legally required to provide employees with fixed schedules, advance notice of scheduling changes, or a set number of hours unless otherwise required by contract or policy. However, employees must be paid for all hours worked, including time spent on required activities such as meetings, training, and pre-shift preparation.

Meal and Rest Breaks

Meal time is excluded from hours worked unless the employee is required or permitted to work during that time. Time spent on the premises of the employer for the convenience of the employee is also excluded. (34 Pa. Code § 231.1(b).)

Preparatory Time

Preparatory time may constitute compensable time. The Eastern District of Pennsylvania has held that time spent prior to logging into and troubleshooting an employer’s computer and timekeeping systems was compensable under the FLSA and PMWA. See Garcia v. Vertical Screen, Inc., 580 F. Supp.3d 79, 85-87 (E.D. Pa. 2022) (applying Pennsylvania law)).

Timekeeping and Recordkeeping

Under both the FLSA and Pennsylvania law, employers must maintain accurate records of hours worked by non-exempt employees, including start and end times, meal breaks, and overtime. Employers may use manual, electronic, or biometric systems, but must ensure that time records are truthful and that employees are not pressured to underreport hours worked. Altering time records or encouraging off-the-clock work exposes employers to significant liability.

Unionized Workplaces and Collective Bargaining Agreements

In workplaces governed by a collective bargaining agreement, employee scheduling, shift assignments, and overtime procedures are typically governed by the terms of the CBA. Employers must adhere strictly to these terms and may not unilaterally alter schedules without bargaining with the union. CBAs often include:

  • Shift bidding rights based on seniority.
  • Notice requirements before schedule changes.
  • Overtime distribution rules.
  • Guaranteed minimum hours or shift lengths.

Where a conflict arises between employer policy and the CBA, the CBA controls. Employers must review the applicable agreement and consult with labor counsel before modifying scheduling policies that may implicate collectively bargained rights.

Sick Leave, Medical and Family Leave

Pennsylvania does not have a statewide paid sick leave law.  However, Philadelphia and Allegheny County mandate paid sick leave through local ordinances.  

Both the city of Philadelphia and Allegheny county require employers to provide eligible employees with up to 40 hours or 5 days of sick leave per year. Outside of these areas, Pennsylvania employers can choose whether to offer paid sick leave, and how much to provide.  Employers should establish clear policies on eligibility and use of sick time.

Policies should include permissible uses of sick leave, whether medical documentation will be required, notice requirements, and information on whether leave can be carried over/accumulated and/or paid out at termination from employment. 

Family and Medical Leave Act

Employers with 50 or more employees must provide eligible employees with leave under the federal Family and Medical Leave Act (FMLA).  The FMLA allows for up to 12 weeks of unpaid leave in a 12 month period for qualifying reasons including: birth or placement of a child, an employee’s own serious health condition, the serious health condition of a covered family member.    

In order to be eligible for leave, the employee must be employed by the employer for at least 12 months and have worked 1250 hours in the 12 months immediately prior to when the leave is requested.  

Employers should require the appropriate medical certifications for eligible employees.   Employers should also have clear policies as to whether employees are required to utilize available paid leave concurrently with unpaid FMLA leave. 

Drafting Employment Policies and Employee Handbooks

Employee handbooks are essential tools for communicating workplace expectations, benefits, and policies. While not themselves contracts, handbooks may form the basis of implied contractual claims if not properly disclaimed. Employers should include at-will disclaimers, equal employment opportunity policies, complaint procedures, and guidance on harassment, discrimination, leave, discipline, and termination. Legal review is advised before dissemination to ensure compliance with federal, state, and local law.

Military Service and Veterans Rights

The federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) grants employee rights when returning to work after serving in the uniformed services for fewer than five years, in most cases. In particular, USERRA requires that, absent an employer’s undue hardship, employees returning from military leave be:

  • Promptly reemployed in an appropriate position.
  • Reinstated with all rights and benefits that the employee would have earned without a break in employment.
  • Provided training or retraining as needed to integrate into the new position.

USERRA also:

  • Requires employers to continue to provide health benefits during the first 24 months of military leave.
  • Prohibits employment discrimination and harassment on the basis of past, present, or prospective military service.


The federal Family and Medical Leave Act of 1993 (FMLA) requires, in part, that covered employers provide eligible employees with unpaid, job-protected leave for family or medical reasons, including leave: 

  • To care for certain family members who are qualifying covered service members with a serious injury or illness. 
  • For a qualifying exigency due to the employee’s spouse, son, daughter, or parent being a military member on covered active duty or their call to covered active duty status.

The federal Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) imposes a broad range of obligations on federal contractors and subcontractors to promote the employment of veterans. In particular, the VEVRAA:

  • Prohibits covered federal government contractors and subcontractors from discriminating against statutorily protected categories of veterans, who are:
    • special disabled veterans;
    • recently separated veterans;
    • veterans of the Vietnam era; and 
    • armed forces service medal veterans.

  • Requires covered federal government contractors and subcontractors to:
    • Take affirmative action to employ and advance veterans in employment;
    • maintain certain employment records about covered veterans, including job listings, applications, and employee files relevant to their recruitment, hiring, and employment actions.
    • list job openings with particular employment agencies that give priority to covered veterans when referring job seekers to the openings; and
    • submit annual reports on the number of current employees who are covered veterans.

Personnel Files and Other Records

Personnel records, as these files often serve as critical evidence in employment-related litigation and are necessary to comply with federal and state regulatory obligations. Although no single federal statute requires employers to maintain a comprehensive personnel file, several laws impose recordkeeping requirements for specific categories of information.

For instance, the Fair Labor Standards Act requires employers to keep accurate records of hours worked and wages paid. See U.S. Dep’t of Labor, Fact Sheet No. 21: Recordkeeping Requirements Under the Fair Labor Standards Act. The Occupational Safety and Health Act imposes requirements to retain records of workplace injuries. See 29 C.F.R. § 1904.35. The Immigration Reform and Control Act mandates that employers retain Form I-9s to verify employment eligibility. See 8 C.F.R. § 274a.2.

Employers must also retain documentation necessary to comply with obligations enforced by the Equal Employment Opportunity Commission. See EEOC Record Retention Schedule. In addition, many jurisdictions require employers to keep accurate records of paid sick leave accruals and usage. Sensitive materials, including employee medical records and genetic information, must be segregated from general personnel files and stored with heightened confidentiality to comply with the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act. See 29 C.F.R. § 1630.14 and 29 C.F.R. part 1635.

Typical personnel files include job applications, resumes, job descriptions, compensation details, disciplinary records, performance reviews, signed acknowledgments of handbook receipt, and any employment agreements. Employers should avoid placing documents related to background checks, drug tests, or materials identifying protected characteristics in general personnel files, as these are subject to additional legal protections under federal law, including the Fair Credit Reporting Act. See 15 U.S.C. § 1681 et seq.

Electronic storage of personnel files is permitted under the Fair Labor Standards Act, the Employee Retirement Income Security Act, and other federal regulations, provided systems ensure the integrity, accessibility, and confidentiality of records. See 29 C.F.R. §2520.107-1 and 29 C.F.R. § 516.6. Employers must suspend routine destruction of records and implement a litigation hold when they reasonably anticipate litigation. See Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003).

Personnel records must also be managed in accordance with applicable state law. In Pennsylvania, employees have the statutory right to inspect their personnel files once per calendar year under the Personnel File Inspection Act. See 43 Pa. Stat. Ann. §§1321–1324.

Employers using professional employer organizations must carefully define which party is responsible for maintaining personnel files. However, even if a professional employer organization manages the files, the worksite employer may remain liable for failures to comply with obligations under federal labor, wage, and immigration laws.

The Employment Law Desktop Reference is for general information only. It is not legal advice for specific situations or for decisions, plans, or management by any employer in any circumstances. The law firm of Eckert Seamans Cherin & Mellott, LLC is available for specific advice for PDA members at discounted hourly rates and with an initial one-hour consultation at no charge to the PDA member. Please contact Bridget E. Montgomery, Esquire by email at bmontgomery@eckertseamans.com or by telephone at 717-237-6054 to schedule an initial consultation.