Refusal to participate in a reasonable performance review may be considered unreasonable by an employee and may result in disciplinary action by the employer. That lowered score, in turn, was used as a factor in the decision to terminate her as part of the reduction in force. Professional Licensing Board Representation. If you work for the government, you may have some options and your HR person would know them. The appellate court upheld the verdict ruling that employers are not allowed to consider an employee’s use of FMLA leave as a negative factor when taking adverse employment actions against employees. In employment discrimination law, after the Plaintiff has shown a prima facie case of discrimination, [4] the company must then provide a legitimate, non-discriminatory reason for the adverse employment action. Our offices are commonly asked by employees whether their signature on an evaluation is conclusive proof that they agree with it. A recent employment discrimination case against Verizon demonstrates how a lowered performance rating can be sufficient to establish unlawful discrimination and/or retaliation in the workplace. If an evaluation reveals an issue, consider alternatives that will aid in building an appropriate record of the performance … This doesn’t mean you can’t give an employee in this situation a negative evaluation if … If it had been, a much younger employee would have been terminated instead. Can a Poor Performance Review Count as an “Adverse Action?”. However, a negative performance review, by itself, is not enough to support a claim under either New Jersey’s anti-discrimination or whistleblower laws. More often than not, such a reason is found in the employee’s performance reviews, which allow an employer to acknowledge an employee’s strengths and identify employee … For most employees, however, such disagreement is academic because it usually does not make economic and career sense to litigate an employment claim that does not have any economic damages. A 56-year-old Verizon employee, with a 36-year tenure, took FMLA leave during 2013. This information is not intended to create, and receipt While a poor review may be recognized as discriminatory, courts often require additional evidence to prove employer retaliation. Just about any employee claim – such as an accusation of discrimination or harassment or filing a worker's compensation claim or a request for family and medical leave – gives that employee a special protected status. Notice: Due to COVID-19, we will be conducting all consultations either via video chat, phone, or email and our offices will remain open from 8 AM - 5 PM. The suit claims the company’s performance review process systematically … 287 South Main Street, (Route 29) Lambertville, NJ 08530 Phone: 609-243-0300 Fax: 609-243-0333, 163 Madison Avenue, Suite 220 Morristown, NJ 08530 Phone: (973) 679-6862 Fax: (973) 679-6916. For an act to be considered an "adverse employment action" sufficient to support a discrimination claim, it must constitute "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Employers should consider reviewing their policies and procedures regarding performance reviews and disciplinary memoranda as well as conducting an internal audit to … You receive a notification from the human resources department that your annual performance review will be conducted soon. Copyright © 2021 Zatuchni Law. Performance evaluations are not regulated under employment law. While actually retaliating is illegal, simply tellin… A legal claim against your employer based only on a PIP is not likely to go through. Three weeks after her return, she received a formal mid-year performance review. The jury found for the employee and rendered a $454,000 judgment. Yes. is made that the quality of the legal services to be performed is greater In this case, the employee received a lower performance score based on her use of FMLA leave. Your Annual Performance Evaluation: Some Legal Considerations, Recent Employment Law Settlements And Verdicts, leave under the Family and Medical Leave Act, protesting your company’s lack of compliance, Recent Employment Law Settlements and Verdicts, Complain that you and the other women in your department are being. However, the process that employers use to evaluate employees must be objective and fair, or else it could result in a discrimination claim. This Pennsylvania case involves claims of age discrimination and FMLA retaliation which ultimately resulted in the termination of an employee as part of a purported reduction in force. All rights reserved. No one likes an unsatisfactory performance review, especially one that you believe to be motivated by unlawful discrimination and/or retaliation. While employee performance reviews are designed to benefit and improve the operations of an employer; if not properly implemented, a performance review program may prolong an employment discrimination claim. Once an employee has made a claim against you, assessing her performance becomes very dangerous legally. Simply being issued a sub-par evaluation alone — even one that results in you being placed on a Performance Improvement Plan (or “PIP”) — does not cut it. For instance, you might receive the first bad review of your career soon after you: When a negative review occurs on the heels of such conduct, it establishes a strong causal and temporal link between that conduct and the complained-of employment action. Sometimes the negative ratings and comments in a performance review are veiled references to an employee’s protected status/conduct, and thereby expose the employer’s bias towards that status/conduct. For instance, in another unreported decision, Rosenfeld v. Canon Business Solutions, 2011 WL 4527959 (D.N.J. The act of reviewing an employee’s performanceregularly and objectively has many benefits. This case serves as a reminder to employers that a performance evaluation has the potential to give rise to a retaliation claim. 2009), illustrates this point. After a series of mergers and acquisitions, Braden became a Lockheed Martin employee in 1995. Negative performance reviews are especially helpful in showing discrimination/retaliation when: The ideal scenario is when an employee has an established record of satisfactory or superior performance reviews, then suddenly and out of the blue receives a negative review right after engaging in protected activity. However, a negative performance review, by itself, is not enough to support a claim under either New Jersey’s anti-discrimination or whistleblower laws. Key to the court’s ruling was the fact that the employee’s supervisor had given him a negative performance rating for “absenteeism,” which the court reasoned a jury could interpret to refer to the employee’s FMLA leave. David Zatuchni graduated from Northwestern University School of Law in 1995. With this in mind, it is clear that having objective and constructive performancediscussions is something every organisation should work toward. 2011), an employee alleged, among other claims, that his company retaliated against him for taking FMLA leave related to his insomnia. ), a Black Toronto correctional officer spoke publicly about a poisoned workplace. Sexual orientation discrimination occurs when an employee is subjected to an adverse employment action because of his or her sexual orientation which includes being homosexual, heterosexual, or bisexual. In Ontario (Ministry of Community Safety and Correctional Services and OPSEU (Williams), Re, 2015CarswellOnt 378 (Ont. If you give that employee a bad review, a court could view it as retaliation for her claim instead of as an honest assessment of her performance. Before going on vacation I received a good performance review with a low rating level. The jury returned a verdict for the employee. You can contact us either online or by calling us at (205) 265-1880. Legal Aspects of Performance Appraisals. Re: Unfair Performance Review. Your browser is out of date. Instead, courts require claimants to show an adverse employment action resulting from their employer’s discriminatory and/or retaliatory conduct. For example, an employer may have breached the Code if an older worker is not given opportunities to improve through performance management because of a perception that the performance is linked to age, or if a worker is subjected to a higher level of scrutiny because of another Codeground, such as se… He was admitted as a trainee of the College but was given an unsatisfactory performance review and was subjected to a performance improvement requirement. For many years, Mr. Zatuchni defended large corporations in all types of employment discrimination lawsuits and labor law matters. One example of alleged bias is the lawsuit recently brought against Yahoo by one of its former male editors. No one likes an unsatisfactory performance review, especially one that you believe to be motivated by unlawful discrimination and/or retaliation. |October 31, 2017. At 62 years I feel they are performing me out to keep me from receiving severance. You are anxious but not overly worried: You have been receiving average to above-average reviews throughout your first year from your direct supervisors in informal performance reviews, … … While the company sought to dispose of this claim in a pre-trial motion, the court held that a factual dispute existed over whether the employee was indeed retaliated against, requiring the claim to proceed to a jury trial. If you feel you have been the victim of discrimination or retaliation in the workplace, or if you have any other questions regarding your employment rights, please contact the experienced employment law attorneys at Wrady Michel & King . Centrality/Central Tendency Bias. Generally speaking, many employers use some form of employee performance reviews. At the time, she was exceeding the district average in terms of her job performance. Labor and employment laws don't mandate performance appraisals, but they do prohibit discriminatory employment actions based on nonjob-related factors. Reviews are meant to be legitimate evaluations of an employee’s performance. We are here to serve you! My store was closed so as a Store Manager I have one year from date of close to be offered a store or I would have to step down or out. Eric Bachman, Chair of the Firm’s Discrimination Practice, has substantial experience litigating precedent-setting individual and class action discrimination cases. But in the private sector, sometimes it is better to know when to look for another job where you will get a new start and hopefully be treated fairly. To get the full experience of this website, Since that time, he has exclusively practiced in the field of employment law. Typically, management was required to follow a formal rate-and-rank process in determining who should be laid off during a reduction in force. After returning to work, she was authorized to work half-days for a few months. Such Performance Review Rebuttals should be addressed to a Senior Manager – not HR – and should address and correct (a) false information, (b) things taken out of context, (c) minor items blown out of proportion, and (d) improper motivations, such as retaliation, discrimination or fraudulent cost-cutting. The tendency to rate most items in the middle of a rating scale. Facts regarding employee performance review. An adverse employment action is a change that negatively impacts the terms and conditions of your employment. It is illegal to retaliate against an employee for complaining about discrimination or another violation of a workplace law to you, someone else in your company, or a government agency. I told my manager I didn't agree with the rating and felt that that review did not reflect such a low rating. This Pennsylvania case involves claims of age discrimination and FMLA retaliation which ultimately resulted in the termination of an employee as … please update to most recent version. This field is for validation purposes and should be left unchanged. However, during a round of layoffs in 2012, Braden was fired at the age of 66. Performance Review, Discrimination, and legal action. Examples of sexual orientation discrimination include: A homosexual engineer receives an excellent three-month performance review. The information on this website is for general information purposes only. or viewing does not constitute, an attorney-client relationship. In the aftermath of an employee making or supporting a claim of discrimination, performance evaluations for the employee should be scrupulously objective. The SDA, discrimination law of the UK, for example, has two fundamental elements for a woman to claim direct discrimination (Ross, 2008, p.589). Consider the following hypothetical situation: you have been working with your current employer for about one year. Racial discrimination can come from both a pattern of behaviour creating a poisoned workplace or, more rarely, even a single incident. Instead, courts require claimants to show an adverse employment action resulting from their employer’s discriminatory and/or retalia… Assuming you can prove some kind of adverse employment action, a negative performance review can help support the inference that you were discriminated/retaliated against, and that your employer’s stated reason for its adverse action is a sham. An effective performance evaluation system can help you avoid legal problems by helping you stay on top of performance and conduct issues when they first surface, giving employees notice that they need to improve, and providing evidence of fair treatment if employees must be disciplined or fired. The answer is that your signature on your evaluation only serves as proof that you received and reviewed it. It is difficult to prove that the PIP is being used in a disciplinary way. the following language in all attorney communications: No representation If the review process is not conducted with transparency and an employee is not given sufficient time to prepare so that he or she can meaningfully address or respond to any alleged performance critiques, such a situation raises red flags as to what the actual motivation behind the review is, and the inquiry may become … Employee performance reviews are an integral part of a successful business. than the quality of legal services performed by other lawyers. Employers should make sure that performance management, and other forms of discipline, are carried out in a way that is non-discriminatory and is not based on stereotypes or discriminatory criteria. Had the managers conducted the process as they were supposed to, the employee would not have been ranked at the bottom and, therefore, chosen for termination. The fact that her performance review specifically mentioned her leave time was significant. An unreported New Jersey federal court decision, Mickens v. Lowe’s Companies, 2009 WL 4911952 (D.N.J. For an act to be considered an “adverse employment action” sufficient to support a discrimination claim, it must constitute “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or … Beyond this, performance evaluations can play an important contributing role as evidence in employment lawsuits. With regard to her age discrimination claims, the court determined that there was sufficient evidence upon which the jury found she was terminated because of her age. Feltman v. Capital One was filed as a collective action in federal district court in Richmond, Virginia, and alleged both disparate treatment and disparate impact violations of the ADEA. Performance management is a tool for improving the work performance and productivity of individuals, teams and organizations. Nothing on this site should be taken as legal advice for any individual As EEOC works to address this issue, you can help. Over the next 17 or so years, Braden rose to the senior staff level as a project specialist. case or situation. Robert Braden, the plaintiff, first started working in 1984 for RCA. Grievance Settlement Bd. A recent employment discrimination case against Verizon demonstrates how a lowered performance rating can be sufficient to establish unlawful discrimination and/or retaliation in the workplace. It is increasingly important in the public sector in responding to budgetary and fiscal pressures, increasing demands for public services, and the need for more transparency in reporting on the use of government funds. Signing the PIP notice Even if there's no sign of intent to discriminate, a company could face legal trouble if some part of the review process has a disproportionate impact on a protected group, she said. ... such as whether a poor performance review is an adverse action. When it comes to be that time of year again — the dreaded annual performance review — are you ready? The federal appellate court upheld the verdict. However, with regard to this employee, the managers manufactured a way to rate her so they could justify putting her up for termination. That review, which included a notation regarding her FMLA leave, was lower than her usual review rating. ByWrady & Michel, LLC. However, if you disagree with your evaluation and want to make that clear (whether for potential legal action or otherwise), simply add the following to your signature line: “as to receipt only.”. In Mickens, an employee sued his company under the New Jersey Law Against Discrimination (the “LAD”) for alleged disability discrimination. Save my name, email, and website in this browser for the next time I comment. The employee’s age discrimination and FMLA claims were brought to the jury which ultimately found in favor of the employee and awarded her approximately $450,000 in back pay, front pay, and pain and suffering damages. If you suspect that your negative evaluation is motivated by discrimination/retaliation, and that an adverse action up to and including termination is imminent, contact our offices today for a free consultation on your legal options. Sex Discrimination and Employment Law in the #MeToo Era. In asserting his claim, the plaintiff argued that a negative performance evaluation he received was an “adverse employment action.” The court soundly rejected this argument, citing a long string of cases holding that negative evaluations, as well as written or verbal warnings that do not result in discipline, do not qualify as adverse actions. Before taking action, evaluate key documents (e.g., performance reviews) to ensure they don’t contra­dict the action or support a “pretext” argument by the employee. In most courts, being put on a performance improvement plan is not recognized as an adverse action. If the employee, who was previously consistently given good performance evaluations, is given a poor evaluation, the employer … Just like an employer cannot discriminate in other aspects of your employment, an employer may not discriminate when conducting performance evaluations. There are federal and state anti-discrimination laws which employers must adhere to throughout the evaluation process. Retaliation is the most frequently alleged basis of discrimination in the federal sector and the most common discrimination finding in federal sector cases. Specifically, the use of the rate-and-rank protocol in deciding who to terminate during the reduction in force was not only subjectively used, but also not conducted in accordance with the company’s policy. Obviously, performance evaluations play a big role in your continued employment and advancement within your company. Instead, another younger employee who had actually been placed on a performance improvement plan would have been ranked lower than her. Goodyear is filed as a class action in state court in Ohio and alleges both disparate treatment and disparate impact age discrimination in violation of Ohio statutory and common law. Many businesses will have policies and procedures outlining how performance reviews are to be conducted, as well as possible outcomes and further processes depending on the review results. Legal Issues When Reviewing Performance. In 2014, the company went through a reduction in force. That being said, here are a few legal considerations with respect to your annual performance review. Alabama State Bar, Rules of Professional conduct, Rule 7.2 (e), requires The “Developing” rating she received indicated that she was not meeting her objectives or expectations and needed to improve. Hiring a proven and effective advocate is critical to obtaining the maximum recovery in a discrimination case. Examples include a reduction in hours, a salary cut, a demotion, and, of course, termination. While a poor review may be considered unreasonable by an employee ’ s performance an important contributing role evidence! 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