Are You Being Set-Up for Termination?

The Law

• Employers may not discriminate on the basis of age, sex, gender, disability, race, national origin, ancestry, use of statutory medical leave, and a myriad of other reasons.
• Employers may not retaliate against an employee who complains, protests or opposes illegal employer practices of public importance.
• In Yanowitz v. O'Loreal (2005) 36 Cal.4th 1028, the CA Supreme Court identified how employers create misleading performance evaluations to hide an illegal motive of retaliation.

What You Can Do

Because employers are continuously urged by human resource consultants to "document" an under-performing employee, managers who want to terminate an employee for illegal reasons will often go to considerable lengths to hide their unlawful purpose behind a cloak of paper. This paper often takes the form of "first, second & final warnings", impossible performance improvement plans ["PIPS"], negative emails and memos to the personnel files, and other detailed records of often trivial errors and omissions. Here are questions to ask as you try to understand why you are being targeted for criticism:

• Look at write-ups: Is there a "before/after" demarcation, such as a new manager; new location; merger/consolidation; transfer, etc: that marks "day & night" in way the employee has been evaluated? (It may be that a new manager introduces a new attitude of discrimination). One important "demarcating event" is an employee's "complaint" of discrimination/harassment/illegality.
• Were previous performance evaluations generally positive and consistent before the "demarcating event"?
• Is there any change in the employee's life circumstances or work responsibilities/skill set that show the work criticisms to be valid?
• Are the write-ups consistent with the overall personality, attitude, character, and work history of the employee, or do they reflect an abrupt or extreme change in work ethic?
• Do the write-ups follow in fairly rapid sequence, even before the employee has an opportunity to improve?
• If there is a Performance Improvement Plan (PIP), is the manager providing sincere and real support and feedback during the progress of the PIP? Is there any credit or acknowledgment for substantial compliance (versus strict compliance) with the PIP?
• Do the write-ups set nearly impossible performance standards?
• Is this an employee who is usually self-motivated and self-directed, but who is now being micro-managed?
• Is this employee being written up for matters that were previously overlooked or considered trivial?
• Are the write ups long, and adversarial in tone? Do they contain harsh and accusatory language, suggesting an ill-motive?
• Are the write-ups part of a likely campaign to create so much stress that the employee is brought to quit or to request a severance?
• Is anyone else either currently or in the recent past written up in like fashion? Have other employees been allowed to make the same mistakes, or worse, without being written up?
• Does the employee have factual information bringing doubt on the truth or purpose of the write-ups?
• Are the write-ups primarily subjective ("poor attitude") or objective ("not hitting the numbers")?
• Are the write-ups reviewed and approved by other managers who have no apparent motive to discriminate or retaliate? Is the decision to discipline reviewed by H.R. or other managers before imposed?
• Do other employees working with the Plaintiff confirm by direct observation that the Plaintiff's work or attitude is substandard? Conversely, are other employees supportive of Plaintiff's work?

Conclusion

The CA Supreme Court's 2005 decision in Yanowitz v. L'Oreal provides reasoning that will be very useful to employees because the Court explicitly recognized how employer's in bad faith can create a "paper trail" to hide a motive to discriminate or retaliate. My years of experience as an employee rights attorney confirms what the Supreme Court recognized. The points I have outlined in this article are the product of virtually hundreds of real workplace cases I have reviewed. Employees can fight back by stating objectively and factually the reasons why their management's work criticisms are false, or lack fairness. Employees believing that the motivation behind the "paper attacks" is discrimination or retaliation should explicitly state so. There is nothing unethical in "making a record" to protect yourself from unlawful conduct. You can be sure the employer will be using its "paper" resources against you, so fight back.

Employee Rights Attorney Frank Pray

5160 Campus Drive

Newport Beach CA 92660

949.251.1006

877.job.atty

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