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[Episode 22] GovCon HR Round-Up Podcast
Acing Your Year-End Reviews for a Strong Start in 2026
Our hosts Joe Young, Declan Leonard, and Seth Berenzweig unpack what GovCon leaders must know heading into year-end reviews—plus critical updates on EEOC enforcement, NLRB changes, the Pregnant Workers Fairness Act, and more.
Read The Full Transcript Below
"And remember PIPs are not done in a vacuum. It's not like the employees like, “Oh, I just got a PIP.” They know the history of the company. And if the company does use PIPs the right way, if they have used that to create success stories, and there are credits, then that will not cause consternation."
Declan Leonard
Managing Partner, Berenzweig Leonard
Transcript
Leading Your GovCon Workforce Through a Government Shutdown
Joe Young
Good afternoon, everyone. As you can see, we're coming to you from a little bit of a different location today here. Still at the world headquarters of Berenzweig Leonard LLP here from the wonderful Cathedral Conference Room today. But welcome to the November edition of the GovCon HR Round-Up. It's great to be with everyone.
Since we got together in October, two major developments and major settlements have had a huge impact on my life personally. The first one being, obviously, the end of the government shutdown because we weren't going to have this if we were still in shutdown.
Declan Leonard
Yeah, I was going to boycott as well. Yeah.
Joe Young
The other one was YouTube TV coming to a settlement with ESPN.
I’d gone two weeks without ESPN and, you know, both of these of these stalemates were starting to weigh on me.
Declan Leonard
You're a Philadelphia Eagles fan. You need to watch. For us, we wouldn't mind a blackout here.
Declan Leonard
We’ve all prayed for a bye and it's coming this week.
Joe Young
But I come here today a much happier person that the shutdown is over. And that ESPN is back on YouTube TV. So, all is better with the world. But great to have everybody with us today. My name is Joe Young. I am the President of GovConPay. We are the only outsourced payroll and HR provider focused exclusively on serving the government contracting marketplace.
As I said, we're coming here again from the offices of Berenzweig Leonard. Before I introduce my distinguished co-host here, as always, we want to recognize our sponsor, the great folks from Berkshire Associates. If you're not familiar with Berkshire, they are HR compliance experts who've been supporting companies for over 50 years, providing compliance services and technology for organizations looking to build their ideal workforce through compliant nondiscrimination services, workforce analytics, and pay equity expertise.
So, a special thank you to Berkshire and any Berkshire clients and guests that are joining us today. So before we get into our topic today, gentlemen, for any first-time listeners here, why don't you kick us off with introductions. Seth, do you want to start?
Seth Berenzweig
Sure. Hi, everybody. Seth Berenzweig. Co-founding and co-managing partner of Berenzweig Leonard here at the firm. And I helped lead our corporate transaction practice and also on our business formation and litigation practice.
Declan Leonard
And I'm Declan Leonard, Seth’s law partner, also co-managing partner here at Berenzweig Leonard. I head up our firm's employment law practice, and we've got an event tonight where we were told to dress “holiday chic.”
Joe Young
I have accessories still for this.
Declan Leonard
Oh, you do? This is this is the best I get for holiday chic. So hopefully… I'm not good with these newfangled dress codes.
Joe Young
That is a new category that leaves us all a little confused.
Seth Berenzweig
Declan always wears holiday chic, so it's not new.
Joe Young
We just don’t know what holiday.
Declan Leonard
So I'm going to put a plug in for, Todd Casselberry and BLC Digital Strategies. I know we're not in the studio, which is really, literally just directly across the hallway, but we found out because of a power surge that it messed with the microphones and how quickly – in a matter of five minutes – that they set us up over here.
So that's why we're over here.
Joe Young
This comes true only with the great work of the people who are not on the camera. So, yes. Thank you. Thank you to our teams behind the scenes very much.
Today's topic, this month’s topic we're going to get into, some conversations around year-end reviews, reviews in general. Obviously, it's that time of year for a lot of companies.
But before we kind of jump into our topic, we would be remiss, I think, without having some commentary on the big news that's happened after the longest government shutdown in history. So, Seth, what are some thoughts as far as what you're seeing with clients and just the ramp back up from what we've been experiencing?
Seth Berenzweig
Well, for those of us who live in Maryland who need to drive into Virginia, there is no clear indication that the government is back because the traffic is also back at this point. So the Beltway pain is back to taking a beating. But, it feels like we've gone full circle here in 2025.
We started with a new administration, DoGE craziness, and the longest government shutdown in the history of Washington. The good news is that we're back. The shutdown is over. Everybody's back to work. Everybody's ramping back up again. And it's time to reengage with the workforce, which is just in time for reviews, which is very timely for us because, we're talking about year-end reviews and things related to it and evolving in that space, including some of the requirements and best practices.
So, it's been a heck of a year. A lot of ups and downs, but, I think safe to say that hopefully we're going to we're going to end up on a very positive note.
Declan Leonard
In last month's Round-up, we talked about the impact of the shutdown. We talked about furloughs, things of that nature, how that impacts your company from an unemployment compensation standpoint, from a benefits standpoint.
So, I suspect those that are listening here will have varying degrees of sort of getting back online. “Do I have to re-onboard people that maybe were no longer on benefits?” Things of that nature.
It's probably a mixed bag of what you've had to do. Hopefully it's been pretty seamless for a lot.
That's what we're seeing with a lot of our clients. That while this was incredibly disruptive, at the end of the day, it did not result in sort of mass layoffs or mass furloughs. But we know that it's nonetheless always a headache for HR. And by the way, let's hope because if I'm not mistaken, this only goes until the end of January.
So if we’re back doing this again, we will be boycotting.
Joe Young
May be a bold statement, but I think the people down the street downtown learned a lesson that nobody wants to see again.
Seth Berenzweig
Luckily, they never go into a non-funding situation.
Joe Young
Great. Well, as far as some other topics, I know with EEOC… there have been some other changes that come out that you guys wanted to cover.
Declan Leonard
It’s actually directly related to the shutdown and the reopening of the government because while we keep hearing about all these different priorities that the Equal Employment Opportunity Commission is going to be employing under its new administration leadership, it really hasn't been able to do anything really throughout most of this year.
First half of the year, we had the DOJ's cuts and trying to get a Republican new administration commissioners approved. They have to get a quorum, so three out of five in order to act. They have not been able to act. They finally got the quorum right before the shutdown. And then the shutdown obviously interrupted any action. So, they still have not flexed their muscle.
But now, they're right in a position to do so. They've got the quorum, and they've got very different priorities than the prior administration. And they are not afraid to trumpet those priorities, among them being that they are going to be… So, yeah, they are the nation's enforcement of discrimination, gender discrimination, race discrimination, age, disability, religion.
Well, what they're looking at very carefully is religious discrimination claims, whether it's anti-Semitism, anti-Christian, anti-Muslim, and they're taking very, very, vigilant action. And that is not something that you saw in past administrations. I would say race and gender have always led the pack when it comes to EEOC enforcement actions. But I think we're going to see a big change when it comes to that.
Seth Berenzweig
Yeah, I think that there's going to be a major shift in EEOC that will change and gradually – or maybe not so gradually – go away from just being kind of a stuffy, bureaucratic piece of the federal government where it's just a place where complaints go into a black hole for a year or two, into an agency that's going to be more active, more proactive, that will show real changes from the prior administration.
There's going to be aggressive enforcement against DEI positions. There's going to be pronounced activity against the kinds of actions that were much more pronounced under the Biden administration. So that's going to really be a very marked change, and we may not really see it start to perpetuate it till after the new year, because we're about to head into the holidays.
But, that's a really big change. And, I think you'll see something that will be relatively new, which is a much more activist EEOC with a whole new set of priorities.
Declan Leonard
One other area that they are focused on is the Pregnant Workers Fairness Act, which was passed and provided a lot of protection for pregnant employees. For the longest time, there was a question of whether or not pregnancy was considered a disability under the Americans with Disabilities Act because it is a temporary condition. Certainly, some of the medical impacts of pregnancy would be ADA qualifying. Pregnant Workers Fairness Act came in and said, “Listen, that all has to be accommodated in America's workplaces.”
What happened though, as with every legislation, is the Democrat administration came in and said, “We're not only going to cover pregnancy, but we're going to cover things like abortion-related [care], we're going to cover infertility. We're going to cover things like menopause.” This administration has indicated that they believe that they've expanded those particular aspects beyond what the Pregnant Workers Fairness Act was intended for.
And they're going to look to curtail things like that. They're going to say, “You don't have to accommodate for somebody who is going to get an abortion. You don't have to accommodate for fertility treatments. You don't have to accommodate for somebody unemployed who's going through menopause.” Now, this is what they stated. They haven't done it yet.
Seth Berenzweig
And although some may say that that sounds controversial, there's an argument to be stated that all they're really doing is they're just enforcing the law. They're just trying to ratchet back in a prior administration that some would argue, I'm not going to throw an opinion out and I'm not trying to be political, but some would argue that the administration earlier had tried to expand beyond what the law actually requires.
Also, keep in mind that the Supreme Court did away with the so-called Chevron doctrine, which allowed for kind of a super bureaucratic fortress of agency decisions where it's got back into trying to hold to the core, true meaning of what are the core elements of what Congress intended. So, there's going to be a more conservative aspect from the EEOC positioning in that regard.
But as Declan said, they're going to be leaning into some other pieces much more aggressively.
Joe Young
And you guys also said maybe some changing new priorities as it relates to the National Labor Relations Board as well as we come out of this. What are some things that are probably important for our listeners?
Declan Leonard
Yeah. So, the NLRB is the second agency that also the impacts workforces. We did a bunch of these Round-ups during the Biden administration, where the NLRB was really one of the more open agency, frankly, more so, in my opinion, than the EEOC in the last administration. They largely are associated with union activity. If you have SCA contracts, that certainly would come into play.
But they're more than that because they really can reach into every private workplace. And what we're already seeing is legislation from Republican politicians that are trying to curtail the powers of the National Labor Relations Board. They're basically saying that it's not going to be so easy to file an unfair labor charge. Frankly, you can be fined. I think it's up to $5000 per unfair labor charge if it's deemed to be frivolous. In the past, it's been very easy. I've seen it many, many times with clients where you just fill out a form and you send it in, and next thing you know, you're under investigation. So, they're taking aim at that. Definitely.
Joe Young
Well, let's jump into the performance topic that we mentioned we're getting here at year-end. I think just to start off, Seth, just from a high level or maybe the format of structure and best practices, what are some of the things that our listeners should be thinking about as they look to put these efforts into place?
Seth Berenzweig
We’re in performance evaluations season, and I think that the key is to not have it be complicated, to try to keep it simple so as to not over complicate the process. And to make sure that when you're getting the HR leaders involved in the process, that they coordinate with front line supervisors so that it is an integrated, collaborative process rather than something that is imposed from above, so that there is an encouragement to, to keep it regularized, simplified, coordinated. And there are a number of storage and retention requirements that I think are worth noting because these sound like they're a little bit antiseptic, and a little bit complicated, but I think that they’re intuitive. I think that there are things that are actually very simple and that are specifically geared towards ensuring best practices for the protection of the company.
So, there's a Virginia regulation – Title 12 of the Virginia Administrative Code 35-105 – relating to employee and contractor personnel records. The employee and contractor records, under the Virginia administrative code, have to include various elements, and they're pretty basic. But they’re important. Personally identifying information, education and training history, employment history, disciplinary actions…
The records, under the local regulations, need to be maintained for a period of three years after the term of employment has concluded. And these are things that again are they're really considered best practices and are things that will certainly prove to the benefit of the employer. There's also a relevant Virginia statute, Section 801-413, regarding copies of employment records, the right of employees and legal counsel to access copies of the records, and the handling of costs of attorney's fees.
There are similar requirements with regard to statutory requirement to maintain current and accurate employment records. The employment records need to be able, as a matter of Virginia statutory law, to be accessed by the employee and his or her. And because of our attorney and on a request to access the records, the employer has to provide access to those within a period of 30 days.
So, again, rather intuitive. Shouldn't be overly complicated. There are related EEOC requirements also for record maintenance requirements. That's under Title 29 of the Code of Federal Regulations, which require retention of complete employment records, including records of any pending charges. So what the EEOC requirements do is they basically codify what we lawyers call litigation hold. If there's any kind of a formal or informal allegation or charge, there's a requirement under federal law that the company preserve and maintain essentially a hold on all of those records.
So, again, these are basic requirements, things that are really… can be considered as guideposts. It's not critical that evaluations beside. There's no technical requirement for signing of an evaluation. But I think it's probably good practice. So, I'm wondering, Declan, what your opinion is with regard to the protocol and someone signing or maybe even refusing to sign a performance review.
Joe Young
One thing that’s interesting too, with the advent and the development and the advancements in HR technology platforms… In my world, it's funny – we've always looked at it and with our clients and the HR professionals providing them resources and tools and interfaces to enhance the experience, make it easier for managers, making a better experience for the employees, not be a paper-based process.
Never really thinking about the legal requirements of maintaining all of that information, which also it just leads to making that more efficient. So for hitting that requirement, that's a whole point of that we hadn’t even thought about.
Seth Berenzweig
That approach is not only good from keeping them in the efficiency requirement, but you're helping keeping companies out of trouble. Because you're allowing the meetings to more readily comply with all these requirements.
Declan Leonard
Yeah, I've seen so many situations in the past. And I think that you're right, these platforms have largely rendered this issue more moot, which is, “Hey, you didn't sign off on your performance evaluation or you didn't do x, y, and z.” And there is no requirement to do so. And sometimes, I've had these conversations with HR professionals where they said, “Well, it's not a valid review because it’s not signed.”
It's just not true at all. I mean, all you're really doing is telling them… You just need to show that they received it. And in today's day and age, with these platforms, they provide automatic notifications, things like that.
Joe Young
Most of them have an electronic signature to everybody. And it was done in a split second. You can do that as well. So again, just simplifying the process and even a lot of times allowing, especially in our government contracting world, we see a lot of times that the ability to get feedback for people who maybe are on the contract or at the client, but aren't directly part of your organization, of bringing third parties and add that to the process also just enhances those capabilities in that process.
Seth Berenzweig
Absolutely, absolutely. So, it is something that is really beneficial to both the employer and the employee. It maintains a consistent channel of communications, guidance, and achievement of goals of the organization.
Joe Young
What about the age-old question of what is the recommendation to employers when an employee challenges the result of their evaluation? Not happy with that.
Declan Leonard
Yeah, I don't see a problem with that because I think sometimes when there is a negative evaluation, I think it's good to give a platform for communication and for, frankly, for venting. So often in my world of litigation and employment disputes, it's oftentimes because the employee feels they weren't heard. And these platforms, that again, in your world, you deal with these all the time at GovConPay. The platforms usually provide a feedback narrative area of it, where they can and it really, at the end of the day, it doesn't change the evaluation. It's the employer's ability and right to dictate how they feel about somebody’s performance. And so, just because somebody writes back now every once in a while to say, “Well, it's because I feel like I'm being unfairly targeted and frankly, it's a hostile work environment.” Then you got an issue. And then the HR folks jump into action, spring into action, and have to look into that.
This two-way dialog is good. And it can also have a downside, which is it makes the dialog a lot more back and forth, and it makes HR’s life sometimes a little bit more difficult with all this free flow of information from the employee.
Joe Young
And what we're seeing, as well, we're talking about it in the context of year-end. But I think what we're seeing for a lot of our clients getting away from the one-time-a-year evaluation. We’re doing this, again, having communication throughout the year. Technology platforms enable that type of communication, goal setting, checking in, those types of things, to all week to those better outcomes.
Declan Leonard
Yes, I said at the very beginning that we’re entering into performance evaluation season and you're right about that. We go through that and everything, but what's interesting about that is I suspect that a lot of listeners heard that and said, “I hope that this season has been starting in January and now will just culminate here coming up in December.” Like it really should be.
And in fact, I want to jump ahead a little bit because I think it's an important thing to the last topic, which is how frequently should you do them? It's not just that that you do these at year-end. They really should be a continuous process throughout the year. I was reading something interesting. It was in SHRM, and it's being advocated by one of the SHRM columnists, and they call them same day summaries – SDS, because everything's got to have an acronym. And what it is, is basically after you have, let's say, a meeting, it turned out to be some formal counseling session with an employee. If you had a meeting with somebody, instead of sending the typical CYA email, you send an email, reach out back to that employee. But it's a lot more productive.
And it's like, let's acknowledge the problem, but let's see how do we move past this? And it's a lot more, I would say, productive communication. That's happening now. You are creating a record of counseling throughout that process, and it's a real time record. It's not at the end of the year where somebody may have had three supervisors over the course of a year, and you're trying to figure out, “Hey, what kind of employee? What kind of issues?” And by then they're gone.
And it's really an inefficient process if you're just scrambling at the end of the year. I suspect most people listening here probably have moved away from just doing these either once a year or semi-annually. And they have employed more of a continuous yearlong process of back and forth communication with the employees.
Joe Young
Bring us back to the next thing which kind of ties into those conversations of constructive conversations and about performance. And everybody – everybody - hates the term PIPs. And, I ask, but it sounds like, they have particularly maybe come under some scrutiny as far as how they're implemented, how they're seen from a legal perspective, maybe created issues for companies on how they've implemented them.
So, I think if people are utilizing those as tools, what are the key things they really have to keep in mind to make them beneficial? And ensure sure you get the outcome that you want from it, but also not create additional challenges.
Declan Leonard
Yeah, there is a place for a PIP. I mean, I'm generally not the biggest fan and my clients know that. I'll really hammer them to say, “Do you really think that this employee has a chance to improve?” Otherwise… I saw something on, I think it was on LinkedIn or something, where somebody just said PIP equals punishment in progress.
And I was like, you know what? That is so true. It's the same and so absolutely true. And so that's the problem. What happens is people think this is just the last step before I'm out the door. If you're using them for that, you're using them the wrong way.
You don't need to do so. You're going to probably force your employee to go maybe talk to a lawyer and then they may come back with something, some kind of a claim of unfair targeting. And next thing you know, you're worried about, “Oh, if I terminate, is this unlawful retaliation?” So, it could be creating a little bit of a predicament.
The courts are starting to really become wary of PIPs. They know the game. They know the game that a lot of people use for them, that this is kind of the last step before you're going out the door. And there's been a number of cases. There was a case coming out of New York recently where, the PIP required… It was a two week PIP that required the employee to complete five major projects in that two week period.
It turned out through trial that that would have been basically an impossibility, especially to do it in a satisfactory manner to overcome the PIP. And so, the court basically said, “Well, I just meant in progress. Yeah, that I definitely want to make progress.” And the court just said, “You know what? I think that this PIP was really just a pretext for unlawful discrimination.” So, the company might have done the PIP to protect themselves from wrongful termination. And in the end, they set themselves up for the exact opposite.
Seth Berenzweig
I'm going to look at it a little bit maybe too bluntly, but my approach, on PIPs is why bother? To me, PIP equals no good deed goes unpunished. If you have, at base, 99% of the time, an employment-at-will relationship. But yet, when you're establishing a PIP, you're creating an artificial layer that's transposed on top of that where you have a new set of dictates and requirements that’s basically a pseudo agreed with to be able to track an alignment of progress. And as Declan said, you have these cases that have come out in 2025 that it basically opens the
door for courts to come in and for judges to micro assess it, micromanage. Well, how fair was it? Was it fair? Was it reasonable? Was it manageable? Was it doable? And then you get the plaintiff on the stand after they’ve already motioned to dismiss saying, “It’s totally unfair. And I was treated differently than Mary or Joe.” I am not a fan of PIPs, and I’ve rarely seen it being a good idea versus just having a counseling session, without referring to it as a PIP, but I know Declan…
Declan Leonard
And remember PIPs are not done in a vacuum. It's not like the employees like, “Oh, I just got a PIP.” They know the history of the company. And if the company does use PIPs the right way, if they have used that to create success stories, and there are credits, then that will not cause consternation.
But if it has been pretty much that every time someone's on a PIP, if 30 days later they are out the door, everyone's going to know so they're not done in a vacuum. Actions speak louder than words when it comes to how your company operates when it comes to PIPs. Yeah, we can’t – And then we only got a few minutes left – We can't end such a down note. Come on now.
Joe Young
We’ll go a little rapid fire with a few topics here. Seth, we'll come back to you. Just talking about if, generally, any kind of best practices as far as who's involved in the process for the reviews. What are the key things to consider?
Seth Berenzweig
Consistency, predictability, communication, collaboration. Have other people, aside from the HR managers or ops directors involved in the process. Have them be applied consistently across the board in collaboration with managers for consistent feedback and transparency.
Joe Young
And job descriptions. Keeping them up to date and making sure that your performance, there's alignment there. What are the key things that are listeners need to keep in mind there?
Declan Leonard
Yeah, I was in a meeting with the client today, and we were talking about this very issue of job descriptions, because I sometimes feel like job descriptions are something that happened at the very beginning of the employment relationship. And then they go into the proverbial desk drawer and gather dust or whatever.
And then when there's an issue, if you're looking to ding somebody own performance, they can very well weaponize that. They can come back and say, “That's not in my job description.” And we all know that job descriptions change over time. Your job description, if you’re at the company for five years, my goodness, what you were hired for back in the day.
So you really do have to keep track of those. And I think that these again, it goes back to these HR platforms. Nowadays, it's very easy to do updates to job descriptions.
Joe Young
Do you think once a year everybody should be looking at those job descriptions?
Declan Leonard
Once a year probably is fine. You could argue that you do it more frequently, but I think HR folks are already overloaded these days. I think once a year is fine. Yeah.
Joe Young
Great. Any other closing general comments with regards to this topic?
Declan Leonard
I guess I would say performance reviews underscore the number one issue when it comes to employee relationships, which is communication. So how do you do it? If you really just impose this number system… I always see this 1 to 5, 1 to 10… Usually, it's 1 to 5 and I find it very impersonal.
I know that that's the way most of them are done. So, I'm not suggesting we throw all those out. But like, do you give somebody a 2.5? Do you give a three? Is that three good or is it bad?
Joe Young
Long definitions of what a two and a half it is versus a 3.
Declan Leonard
Exactly. And so, when if you're doing it just based on those numbers, you're not really effectively communicating with your employees. And that's what the name of the game is anyways.
Joe Young
All right. Well, gentlemen, it's always been a pleasure. I want to thank everybody joining us old school today in the conference room. Hope you're able to hear us and follow us.
Seth Berenzweig
We look very powerful.
Joe Young
But again thank you everybody for joining us. We hope everybody has a wonderful safe and joyous Thanksgiving holiday next week.
We look forward to seeing you in December. We don't know what our topic is. As usual, we're going to continue to keep it timely. But we'll make sure, obviously, we come up with some helpful information. Again, safe holiday season. We look forward to seeing you next month and take care.