Ask a California employment lawyer:
What can I do about a negative or unfair performance review?
You’ve been working hard all year. As far as you know, your boss has been happy with your performance. You’re anticipating a great review and substantial raise. Then it happens. Your boss gives you a terrible review and refuses to give you a raise. He may have even put you on a Performance Improvement Plan (“PIP”) filled with lies and misconceptions. Surely, this is illegal, you think. Can your employer really lie about you?
Your reaction is probably rage at the injustice of it all. But do you have rights?
Being an “at-will” employee doesn’t mean you can be bullied for any reason.
Your employer’s harassment may be illegal.
Technically, your employer can give you a poor performance review, even a misleading one, without it being illegal. You serve at the pleasure of your employer, because of a concept called “at-will employment.”
You can never be discriminated against for reasons that are illegal.
An “at-will” employee can be fired, demoted, transferred, or bullied at any time, for any reason....except for illegal reasons, which are spelled out below. That’s why your employer can give you a lousy review, even if it's all a lie. However, we don’t have to just let your boss can get away with illegal behavior!
You have rights as an at-will employee.
Your employer may consider at-will employment to be a talisman against all wrongful actions. Your boss may boldly declare in correspondences, depositions, and even trial that you were “at-will” and could be disciplined for any reason. But this is not true!
You can never be discriminated against or harassed for reasons that are illegal. Most of my clients are at-will employees, but I have been extremely successful in proving that they were harassed for illegal reasons.
If your boss gave you a PIP because you made complaints, your boss’s bullying may be wrongful.
You can’t be bullied because of your age, race, religion, gender, disability, sexual orientation, or marital status. Don’t let your boss get away with retaliation! If your boss gave you a PIP or a bad performance review because you made complaints about illegal activities, about discrimination or harassment, health and safety violations in the workplace, or for taking medical or military leave, your boss’s bullying may be wrongful.
If you don’t know whether you are being issued a PIP or performance review for an illegal reason or not, contact us. We can discuss your case and analyze your situation.
Your should fight the harassment of an unfair performance review or PIP.
If you received an unfair and wrong performance review or PIP, you still have rights! It would be wise to keep a journal of any wrongful actions that your employer is taking against you. If you feel comfortable, you can always complain to human resources or another boss about your unfair treatment.
Keep a record of those complaints (even verbal ones) with personal notes to yourself right after the complaint is made and in the weeks to follow. An anonymous complaint or a complaint to a hotline may bring the company’s attention to your situation.
If your PIP is too vague to understand what your employer expects of you, you should speak up.
You should also write comments in the comment section of the performance review. Explain the reasons you believe the review is unfair and make sure to send a copy to human resources. If your PIP is too vague to understand what your employer expects of you, you should also complain about that in writing.
A PIP should always be very specific about what tasks your employer feels you need to improve upon. Otherwise, the PIP is useless and it looks like the PIP is really just smoke and mirrors for the illegal reasons we previously mentioned.
Please keep in mind that whenever speaking to the company, you shouldn’t write when you are angry. If you insult your boss out of anger they can claim they have to fire you for insubordination. You don’t want to give them a hall pass for treating you illegally.
Fight for justice! Know your rights!
If you just recieved a bad review or PIP, call us so that we can discuss whether or not the reason your boss gave you is the “true” reason, or if it was just a smokescreen for harassment of illegal retaliation.
If you feel you were treated unfairly, reach out to us.
Please make an appointment for a free consultation in our Newport Beach office. You can contact us by email or phone. We want to help.