11.3 Evaluating Employees

11.3 Evaluating Employees

B&F Area E item 3 is evaluate employees, still under employment and labor laws. Hiring (11.1) and policies (11.2) fail in the field if the qualifier never writes down what "good tech" means and then fires people by vibe. Evaluation is how you assign trucks, approve raises, document overtime abuse, and defend the unemployment claim that hits the reemployment tax rate. It is also how you prove — or accidentally disprove — that a termination was for a lawful reason in an at-will state.

Florida at-will means you may generally end employment for any lawful reason or for no reason. You may not end it for an unlawful reason: race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status (F.S. 760.10 and the parallel federal statutes), retaliation for workers' compensation, OSHA 11(c), jury duty, USERRA military service, or a private-sector whistleblower report under F.S. 448.102 (objecting to illegal activity, refusing to participate, or reporting to an appropriate agency). A review that says "too old for roofs," "too many comp claims," or "always pregnant" is not an evaluation. It is a plaintiff's exhibit.

Job descriptions are the evaluation instrument

You cannot fairly rate what you never defined. Before the first review, the file should contain a job description of essential functions: recover and charge to EPA 608 rules, braze, read a manometer, complete a ticket the same day, drive a van with a valid license, wear required PPE, and — for the Class A shop — work on boilers, unfired pressure vessels, or large tonnage when that is actually the job. Class B's 25-ton / 500,000 Btu limit changes which systems the person installs; it does not change how you document attendance. EPA Section 608 certification is a federal qualification for refrigerant work, not a CILB license, and it belongs on the evaluation if the job handles refrigerant.

ADA evaluation is the essential-functions test. Rate whether the person can perform those functions with or without reasonable accommodation. If a tech returns from a knee injury and asks for a mechanical lift or a temporary no-attic restriction, you engage in the interactive process. "We don't accommodate field people" is not undue hardship. Undue hardship is a fact-specific showing of significant difficulty or expense, not a slogan. Do not ask for genetic information (GINA) or a full medical file you do not need. Medical information, when you lawfully have it, is stored separate from the general personnel file.

What to measure on an HVAC crew

Subjective "attitude" scores, used alone, are how two techs with the same callback rate get different ratings because one is the owner's nephew. Prefer numbers the Contractors Manual world understands:

Review on a fixed cycle (90 days for new hires, then at least annually) and when a triggering event happens (failed recovery, customer assault complaint, second no-call/no-show). Have both the supervisor and the employee sign. If the employee refuses, note the refusal. Contemporaneous notes beat a reconstructed file built the week after the EEOC charge arrives.

Progressive discipline, handbooks, and implied contract

Florida does not require progressive discipline. Many HVAC shops still use it because Chapter 443 unemployment (reemployment assistance) and discrimination defense both reward a paper trail:

1. Coaching / verbal counseling, noted in the file the same day.
2. Written warning tied to a specific rule (late, missing recovery log, no fall protection on a 12-foot package unit).
3. Final written warning or unpaid suspension, with a date by which the behavior must change.
4. Termination, with a memo that quotes the policy and the prior warnings.

A performance improvement plan (PIP) is a written version of step 2 or 3 with measurable goals (callback rate under X, 608 recert by date Y). If the handbook says employees will receive three warnings, you have handed the claimant an implied contract argument. Keep the at-will disclaimer, say discipline may be skipped for serious misconduct (theft, violence, working on live conductors without lockout), and then actually follow your own procedure for ordinary issues.

Worked unemployment example. Tech A is written up in January, March, and April for no-call/no-show, then terminated in May. That pattern is the kind of misconduct — willful or wanton, or repeated after warning — that can disqualify a Chapter 443 claimant. Tech B is terminated because "he's getting slow and we're a young shop," with no prior reviews, after 22 years and a recent workers' compensation ankle claim. Tech B is likely eligible for benefits (poor performance, not misconduct), and the file now also looks like ADEA plus 440 retaliation. The employer's reemployment tax experience rating moves with charged benefits. Document the lawful reason before the discharge, not after.

Termination, final pay, and references

Collect keys, van, recovery machine, and refrigerant. Disable after-hours shop codes. Pay all wages earned, including overtime already worked. Florida has no statute requiring same-day or next-day final wages for private employers; pay on the next regular payday. Do not deduct for unreturned tools unless you have a lawful, written, and actually valid wage-deduction path — the exam trap is docking a final check below minimum wage. Accrued PTO follows the written policy; if the handbook says unused vacation is paid at separation, pay it.

References. Florida employers have a qualified privilege for good-faith, fact-based references. Many shops still confirm only dates and title. Do not volunteer a medical diagnosis or a drug-test metabolite. Do not blackball someone for filing a workers' compensation claim.

WARN Act (60-day notice of a plant closing or mass layoff) is a 100-employee federal statute most single HVAC shops never hit. Do not import it into a three-person residential discharge.

What you may not use the evaluation to do

• Punish protected activity. A drop in the rating the week after a 440 claim, an OSHA complaint, an FCHR charge, or a 448.102 report is retaliation evidence even if the person was not a star. Constructive discharge (making conditions so intolerable a reasonable person would quit) is still a discharge for these purposes.
• Skip the ADA interactive process because "eval season is a bad time."
• Rank by age, pregnancy, or marital status in a layoff. If you must reduce staff, use a written, job-related matrix (license, 608, safety record, productivity) applied the same way to everyone, and keep the matrix.
• Misclassify the person as a 1099 after a bad review so you can avoid unemployment. Chapter 440 and the IRS tests in the staffing chapter still apply.
• Ignore FLSA in the evaluation of hours. If you praise a non-exempt tech for "always finishing paperwork at home unpaid," you have documented wage theft. Forty hours is still the overtime trigger; salary is still not an automatic exemption for a person whose primary duty is brazing and troubleshooting.

Florida HVAC scenario

Treasure Coast Mechanical, certified Class A, employs 18 people (Title VII / ADA / F.S. 760.10 apply; ADEA does not yet, because ADEA is 20 employees — but 760.10 still lists age at 15, so do not treat 18 as an age-discrimination-free zone under Florida law). The qualifier wants to remove a 61-year-old service manager who has become sharp with customers. The personnel file has two glowing reviews and nothing since a workers' compensation shoulder claim last fall. The qualifier writes a same-day evaluation: "Lacks energy. Not a good fit for our image. Possible light-duty issues." That sentence block is age, disability, and retaliation evidence stacked on an empty file.

The lawful path is the one Area E is testing. Restate the essential functions (customer communication, complete tickets, safety, 608, supervision of apprentices). Give a job-related written warning for documented customer complaints, with examples and dates. Offer a PIP with a 30-day check. If the conduct continues, terminate for that conduct, pay the next regular payday, and tell the unemployment office the truth with the warnings attached. If the real issue is the shoulder, start the ADA interactive process, not a personality review. If the real issue is the comp claim, you do not have a lawful evaluation — you have a 440 retaliation problem. Class A tonnage and boilers do not change that analysis; a Class B shop running 4-ton changeouts uses the same labor law and the same B&F item.