Take Action To Protect Against a Poor Performance Review

Most employees receive written performance reviews on a bi-annual or annual basis. The purpose of these reviews should be to set goals, keep track of employee progress by measuring objective criteria, set out resources, train employees, motivate poor performers to do better and to determine proper raises or bonuses. This is not always the case.

Performance reviews are also used to create a paper trail for employers to terminate employees. Performance reviews are used to set up an employee to fail and create a written record prior to terminating an employee.

Performance reviews that are not used properly make it impossible for the employee to succeed. They provide overreaching goals that cannot be achieved; are not applied consistently; do not allow employees an opportunity to respond to deficiencies within them and generally do not follow the company’s policies or procedures.

Performance reviews may be used improperly to target employees that employers want to terminate for an illegal reason, i.e. race, gender, disability or perceived disability, pregnancy, sexual orientation, etc. They may also be used improperly to retaliate against an employee that has raised a claim of discrimination, participated in a workplace investigation, filed a claim with the company or a government agency, raised claims of impropriety or wrongdoing, raised health concerns, etc.  Performance reviews may also be used to target an employee that is about to receive a large commission if a deal closes soon or to deny the employee a bonus that will go into a bonus pool and enhance the manager’s personal compensation. While this is not always the case, there is generally a reason that an employee goes from being a stellar employee to now a claimed poor performer or receives a bad review after receiving praise.

Performance reviews may be used to place an employee on a performance improvement plan or a PIP also known as a performance action plan. The employee generally has a set number of days to achieve unattainable goals or otherwise be subject to discipline, including termination.

If you are have recently received a poor performance review and believe that the rating is not justified, it is likely that you will be terminated shortly.

For more information on how to respond to the performance review or performance plan contact Sheree Donath at sheree@donathlaw.com for assistance. You are not alone and there are steps that can be taken to respond to the employer and your supposed poor performance.

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Halloween is a time for fun. But what does that mean when you are at work? Halloween in the workplace can be very tricky and not much of a treat.

If you are going to wear a costume to work, be mindful of the following items, among others:

• costumes should not be sexy or provocative;
• costumes should comply with workplace dress code policies;
• costumes should comply with workplace anti-harassment and anti-discrimination policies;
• costumes should not be inappropriate;
• costumes should not be religious;
• costumes should not be political;
• costumes should not be offensive to others;
• costumes should not be so realistic or scary that they may result in health issues to others; and
• costumes should comply with all safety requirements of your office

Keep in mind that Halloween is a religious holiday. As such, some employees may not want to participate in a Halloween party, costumes or events because of their religious beliefs. Employees should not be mandated to attend any Halloween parties or events or made to feel bad about their decisions. Employees should not be retaliated against for their non-attendance on Halloween or afterwards. Employees should not be harassed by colleagues or their supervisors to attend these events.

Employees should be reminded of all company policies prior to Halloween as Halloween events and parties could result in legal claims of, without limitation, sexual harassment, discrimination, retaliation, overtime, worker’s compensation.

Employees who believe they have been treated in an inappropriate or illegal manner should immediately report the conduct as required by their employer. They may also want to consult with an attorney to find out more about their rights and options and to determine if they can take legal action, if they so choose. Contact Sheree Donath at (516) 804-0274 or at Sheree@DonathLaw.com to obtain more information to learn more about your rights and obligations at work.

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Are you an employee facing a workplace situation such as: discrimination, sexual harassment, a toxic work environment, claims of poor performance, claims of impropriety, bullying, fear of termination, among others? Are you thinking about reaching out to HR for guidance? While this is not the wrong path to take, reaching out to HR comes with some caveats to keep in mind. For guidance on the best approach to reporting concerns to HR, schedule a consultation with Sheree Donath, Esq. at sheree@donathlaw.com.

I am frequently contacted and asked whether an employee should contact HR or if this is a waste of time.. Many employees who are faced with a work dilemma are torn about what steps they should take to stand up for themselves, obtain assistance and protect themselves at work. They are also worried about being retaliated against for reporting concerns to Human Resources (HR).

Employees are often told that HR is there to assist them should they have any issues that cannot be resolved directly with their manager, but most employees are torn about whether reporting their concerns will cause more harm than good even with the promises of no retaliation that the employee is provided by HR and in their company employee handbook.

The people who work in HR are employees like yourself. As such, just like you, they are also concerned about their jobs and how their actions can impact their livelihood. HR’s job is to assist you, but they must do so cautiously. Same as you, HR employees report to others and must take those actions that are expected in their role. There are some situations in which HR can assist an employee and that it is extremely important that the employee reach out to HR for intervention. There are other situations that HR cannot directly intervene and take any action(s) to obtain the final result that the employee may be looking to achieve.

If you are considering contacting HR, there are a number of factors to be considered. Amongst those factors are how to be heard, what are your looking to achieve and how to get your message across in the best possible way so that HR can intervene and take those steps necessary to resolve your concerns and quell your fears about retaliatory actions.

While not all companies have an HR department, the above worries are pertinent in all employment situations. Employees are not generally taught how to take actions or stand up for themselves, even if they do this in their daily job for others. It is different when it is personal to the person and most people feel insecure and scared because the stakes are high.

Donath Law, LLC can assist you in understanding your options, timing, and can guide you through the uncertainty you may be feeling. You are not alone. Don’t let your employer make you think you that you don’t have any options. There are paths that can be taken to modify your situation.

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Severance is a business decision. Unless your employer has a severance policy and your departure falls within the terms of the policy, you are not entitled to severance. For employees being offered severance, the document should be reviewed prior to your signing the agreement. Peruse the questions below and contact Sheree Donath at 516-804-0274 or at sheree@donathlaw.com to discuss the answers and to find information specific to your situation.

Keep in mind that these are just a sampling of the questions to be considered:

Should the severance agreement reference a termination date, state a resignation date or say you are entering into this agreement based on mutual agreement? Are there consequences to it saying one or the other?

How long do you have to sign the agreement? Can you revoke your signature once you sign?

Were you part of a layoff or are you the only person being let go right now?

Why were you the person selected for termination?

Are you entitled to unemployment benefits?

What legal terms are commonly found in the severance agreement?

Are you entitled to continued health coverage/ COBRA and if so, will the company pay for this?

Are you entitled to a bonus or a pro-rata bonus?

What happens to your equity?

Are you entitled to earned and accrued commissions? How are commissions calculated and paid out?

Why is there a non-disparagement clause in the agreement and why isn’t it mutual?

Why is there a release of claims in the agreement and why isn’t it mutual?

What kind of cooperation am I required to provide?

Am I still bound by my non-compete/ non-solicitation agreement?

When will I receive payments under this agreement?

Is the agreement mitigated and under what circumstances? Should I be comfortable with the agreement having a mitigation clause?

Can the agreement be negotiated?

Does the agreement require you to notify your former employer of impending or new employment opportunities?

The above are just a few examples of the many items considered prior to executing a severance agreement. Severance agreements should be reviewed by an attorney knowledgeable in this area of the law. It is a binding contract and contains restrictions on you once signed. It also may incorporate previous agreements that have been signed.

It is important to understand the document you are about to sign, have it reviewed and determine if there is an opportunity to enhance the offer you have received.

For more information or assistance with your personal severance package, contact Sheree Donath at sheree@donathlaw.com or by clicking here.

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Special project assignments are often a negative. Unless the special project is offered to an employee as an additional responsibility, it generally means that the employee’s employment will be terminated shortly.

If the special project is one in which the employee’s knowledge and skill are a perfect fit for the assignment then, generally, the employee taking on this task does not put them at added risk of termination. Instead, the employee is being given added responsibilities and not being removed from all other aspects of their role. In this instance, the special project may be considered an accolade or a stepping stone to a promotion. This is not the typical scenario. Rather, an employee is usually assigned a special project in lieu of their regular job functions, which is likely a path to termination.

Why would a special project be considered a path to termination?

Special projects when offered to employees and not alongside an employee’s current role and responsibilities may mean that there may not be another “special project” to place the employee on after the project has been completed and the employee’s “regular” role may have been filled by someone else or distributed amongst several other employees. At the end of the special project, there may not be a new project to place the employee into. The employee also may not have the ability to return to the original role or a role to similar to the one that the employee was handling prior to engaging in the special project. This may have been done purposely so as to create a situation in which there is no role left for the employee and the only possible avenue is departure.

Special projects are often used to minimize the employee’s interactions with their co-workers. Similarly to implementing a performance plan, special project assignments are used as a mechanism by managers to create a path for termination of an employee that they want to remove from their team.  Assignment to a special project customarily creates a situation in which the employee is excluded from meetings, emails, team building, daily interactions, events, communications, etc. Valuable employees that managers wish to retain, are kept close and are made to feel valued in an effort to prevent the employee from seeking employment elsewhere. Special projects are a way to create distance between employees and their team.

Like musical chairs, there may not be a seat for the employee when the special project ends. Without a new project and without the employee’s original role, there is likely no option but to terminate the employee’s employment.

Special projects may be used to target, among others, older workers; employees who complained of discrimination or retaliation or raised concerns about a toxic work environment; or to move employees that the manager seeks to terminate to an isolated role. Many times, the goal of a special project is to ostracize the employee or make the employee feel uncomfortable or targeted so that the employee quits and the employer does not have to terminate their employment.

If you have been assigned to a special project, or asked to consider taking on a special project, reach out to Sheree Donath, Esq. at sheree@donathlaw.com – Attorney and Workplace Tutor – to find out the questions to ask, your rights, options and to prepare for your possible voluntary or involuntary termination.

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There are specific terms that should appear in an employment contract or offer letter. Some provisions are easily discernible while others may be more vague. Employers believe you to be valuable at the time of hiring. As such, it is best to incorporate as many terms and specific provisions into your employment documents prior to signing your employment contract or offer letter and before commencing employment/ giving notice to your current employer, if applicable.

See checklist below. This checklist, however, is illustrative and not a comprehensive list and is not applicable in all instances. It is best, to have the document(s) reviewed by a qualified professional who can also assist you in how to seek to incorporate these points into your documents if they are not already set forth within and if they are applicable to the role you are seeking.

1. Job Title and Job Description: Is this clear? Can the Company change this at any time with or without notification to you? What happens in they do? Is there any remedy to you?
2. Reporting Chain: to whom do you report; is there both a direct and indirect reporting chain? Are you going to have direct reports reporting to you?
3. Office Location: will you the employee is remote or hybrid or will work from home and if in office, where is the office that the employee is expected to be in
4. Term or At Will: If a term contract, is it truly the term stated at the beginning of the contract — for example 1 year — or can you be terminated on 30 days’ notice, making the contract, in essence, a 30 day contract
5. Compensation Package: Salary, Bonus(es), Commissions, Incentives, Stock, Equity – Is this what was agreed upon? Is the new company buying out deferred compensation? Is there a portion of bonus paid in cash and a portion paid in stock? Is there a vesting schedule? If starting after the fiscal year commenced will you receive a pro-rata bonus for the year? Will you receive a pro-rata bonus if terminated without cause prior to bonuses being paid?
6. Sign on Bonus: any requirements for you to stay for a period of time or pay back upon departure? Are there any claw backs?
7. Guaranteed Bonus or Bonus Based on Performance: If pay based on performance, when will you receive the metrics that you must achieve? Is the bonus to be paid now or as deferred compensation and will it be paid in cash or part in stock/equity and is there a vesting schedule?
8. Benefits: What benefits are you entitled to? When do they start? Do they include health benefits, 401K with or without a match, vacation, PTO, sick time, short/long term disability, lactation breaks, bereavement leave, etc.
9. Notice Requirements: Do you have to give a set amount of notice if you will be resigning? Does the company have to provide you with any notice if they are terminating you without cause? Can you resign for Good Reason and if so what are the requirements to do so?
10. Restrictions on Future Employment: Do you have a non-compete, non-solicitation, confidentiality agreement and do these continue if the employee is terminated without cause or only if the employee resigns. Also, do you have any of these documents with your current employer and if so does that impact your going to this new role? Does the new employer know about your current restrictions?
11. Additional Documents: What will you need to sign on the first day or shortly after starting employment: non-compete agreement, workplace inventions agreement, confidentiality agreement, acknowledgement of the Employee Handbook, commission plan, arbitration provision, etc.
12. Severance – This is generally found in executive agreements and may apply if the employee is let go prior to the end of the term or if the employee resigns for good reason. Any severance may require the employee to sign a release of claims and the contract may state what the employee might be entitled to (i.e. salary, benefits, expenses, bonus, etc.). This should be negotiated with the contract, if possible, as a no less than benefit.
13. Relocation Benefits – what are offered, any requirements to stay for a period of time, or repayment. Possibility of re-relocation benefits at a later date.

Individuals who receive new employment agreements should have them reviewed by a legal professional, prior to execution, so that all of the terms and promises discussed in the interviews are documented and to prevent a lack of clarity at a later date. Everything is negotiable. Employers will likely state that this is their standard documents, however, if they truly want to hire you, the employer will be open to discussion on certain points.

The above list is also the key points but does not delve into any legal language that may also need to be clarified.

Contact Sheree Donath at 516-804-0274 or Sheree@DonathLaw.com for assistance in having your employment contract or offer letter and the accompanying documents reviewed. As time is of the essence, you will be accommodated (speaking in the evening or weekends) to ensure that the documents are promptly reviewed and discussed with you and that you can then respond quickly to the potential new employer.

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The holiday season is here and that means for most companies, a Holiday Party. Generally meant to boost morale, holiday parties can also result in trouble for the employee and the employer. It is important that you do not let holiday festivities trump your otherwise good judgment.

While a holiday party can be a great opportunity for an employee to have a good time and get to know his/her boss, manager, and co-workers better, it can also result in bad choices. Failure to act properly during the holiday party could result in disciplinary action, or worse, termination.  Before attending the holiday party keep these factors in mind:

(1) Dress professionally. Remember this is still a company sponsored work event. You should dress appropriately for it and not wear clothes that would be deemed inappropriate for the workplace.

(2) Bring your spouse, partner, significant other or a guest, but only if they are invited. Do not assume that you are invited with a guest. This is not always the case. If you are invited with a guest, make sure that the person you choose is the proper person to bring to this kind of event. Having a guest with you may prevent you from acting in a way that you would not normally act in front of your co-workers or unfamiliar people. This person can also reign you in, if necessary. Make sure that the guest you bring acts appropriately and is aware that this is a workplace event.

(3) Mind what you say. Do not gossip or complain to other co-workers at the event about something that happened at work. If it would not be considered proper decorum to speak of what you are discussing during the workday then you shouldn’t do so at the holiday party either. Do not overshare information about yourself. Remember, you will need to face these people the next day at work, and they will remember what has been said. This is not a time to let everyone know you are unhappy about your bonus, your boss or another colleague. Keep your concerns to yourself or report them properly at work.

(4) Use this opportunity to network. There are people at the holiday party that you don’t get to see on a daily basis. Try and speak to these people and let them get to know you better, but don’t cling to them. Remember, there are other employees at the party that they may want to socialize with as well and if there are guests invited, possible new connections that can lead to a new or different job opportunity. Be careful that you don’t only “talk shop” or you may be considered boring and unable to socialize with your colleagues. Work can be discussed, but it shouldn’t be the sole topic of discussion. Do not try and ask for a promotion or a transfer during the holiday party. This is not an appropriate space to try to interview or advocate for a new role.

(5)  Don’t drink too much. Most holiday parties have alcohol available. However, be mindful of the amount you are drinking and your actions because of your intake. While you want to have a good time and let loose, you also want to ensure that you are not subjecting yourself to any claims of improper conduct, sexual harassment, etc. Also, if you do drink, make sure that you have a way to get home that does not require you to drive yourself or others.

(6) Review company policies. Remember that the holiday party is a company sponsored event and as such, you must still follow the company code of conduct. Specifically, the anti-harassment and anti-discrimination policies still exist. A violation of the policies will result in disciplinary actions being taken.

A holiday party can boost employee morale and allows employees to relate to their colleagues in a less stressful environment. However, be mindful of the above and remember that this is not a social event with your family and friends.

Contact Sheree Donath, Esq. by clicking here if you have any questions or concerns about your employment relation or need assistance in determining, or standing up for, your rights in the workplace.

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If you find yourself in one of the below situations, I urge you NOT to resign but to first speak with someone about your options. You do not have to wait until you have been fired to take action.

Here are some signs that your JOB MAY BE IN DANGER!!!!!!!!!!!!

• Have you recently received a performance warning? Was the performance warning for something that was previously considered inconsequential and/or are you being disciplined for something that others are also known to be doing but they are not also being given a warning? When performance warnings are given inconsistently, it may be a sign that the company is making a written record to terminate you.

• Have you recently received a bad performance review and or been placed on a performance improvement plan or performance action plan and given a certain number of days to try to improve your performance? At times, even long time employees, are suddenly placed on performance plans, or for the first time in their career they are given a poor performance warning. This is a sign that your employer may be looking to terminate your employment rather than assist you in improving your performance. As you will see in these documents, the metrics are generally impossible to achieve.

• Have you been placed on a special project? Special projects when offered to employees and not alongside an employee’s regular role may mean that there may not be another “special project” to place you on after the project has been completed and your regular role may have been given to someone else. At the end of the special project, without a new project and without your old position, there is likely no option but to terminate your employment.

• Have you been excluded from meetings, events, emails, communications? Being excluded from even a few of these could mean that you are being kept out of the loop for a reason. If you are feeling ostracized it is more than likely that this is not just a feeling and there may be a basis for this feeling of uneasiness. Valuable employees that are going to be kept on, are kept close by, so that they don’t seek employment elsewhere. Usually when an employee is being excluded by management, it is because that person may know the employee is on the list for termination and the manager may be uncomfortable with the person being in the meetings and/or not sharing the decision with the employee until the manager gets the green light to do so.

• Has there been a change in control or are you working for a new manager? Has the organization been purchased or a a new executive staff, manager been brought in to oversee your department or role. Did two companies merge and now there are two people doing the same job? A change in control, merger, or new manager may mean that the new regime may want to bring in or retain their own people. This leads to possible redundancy and your position could be terminated as a result.

• Are there rumors of layoffs or a restructuring? Have you been kept in the loop as to the selection process. Are you told that your team is okay but you know there are cuts being made throughout the organization? It is possible, even if you are assured otherwise, that your position is the one that is being terminated especially if people do not want to discuss the upcoming layoffs with you where previously you would be integrally involved in the discussions.

• Have you made complaints of discrimination, impropriety, workplace misconduct, bullying, etc.? If you were recently involved in starting or participating in a workplace investigation your role may also be in jeopardy. While employers are not to retaliate against employees who speak out or engage in these processes, it is possible that an employer will try to include you in a large layoff or place you on a performance improvement plan a few months after you voiced your concerns.

To understand your rights and options and/or to obtain guidance on how/if you should take any action, contact Sheree Donath at sheree@donathlaw.com or by clicking here.

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Many Companies use Performance Improvement Plans, also known as a PIP or a Performance Action Plan, or a final written warning as a basis for terminating an employee. They are also used in an effort to push the employee to resign from employment thereby potentially denying the employee of items to which the employee would be entitled if they remained employed (i.e. bonus, vesting, matching, commissions, promotions, etc.). At times the employee is offered a severance package in lieu of moving forward with the action plan.

The employee is given a written document outlining the supposed issues with the employee’s performance and a set amount of time to supposedly fix or “cure” the problems with the employee’s performance. The written document sets forth the goals that must be met in order for the employee to keep their job. The document generally comes after the employee has received a written performance review. These poor performance reviews are generally given for the sole purpose of placing the employee on a performance plan (click here for more information on this topic).

So what should an employee do if they receive this type of plan/warning? Do they have any options?

Yes, employees should not simply accept the performance plan they have received. In fact, many times, these plans are given to long-time employees who have previously been top performers, but have recently objected to some apparent impropriety or violation of law. They are used to create a paper trail – a record – for termination of the employee who the employer would otherwise not have any reason to terminate.

Employees should take the following steps, among others,

• review the document given;
• sign acknowledging receipt only and not agreement with the content;
• be prepared to provide a written response;
• question the goals that have to be met: are they objective or subjective? can they truly be met?
• determine who will be deciding if the employee meets the terms;
• determine the timing to do so;
• find out what happens if the employee does not meet the goals;
• speak with legal counsel to determine if the employee has legal recourse for receipt of the performance plan and the employee’s rights and options

EMPLOYEES CAN TAKE ACTION WHILE THEY ARE STILL EMPLOYED AND DO NOT HAVE TO WAIT UNTIL THEY HAVE FAILED ON THE PERFORMANCE PLAN OR ARE FORCED TO RESIGN!!!!

Employees should not wait to seek counsel or assistance. If you have received a Performance Improvement/Action Plan or final warning and want to determine how you should proceed, contact Sheree Donath to schedule a consultation.

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Do you need assistance navigating daily workplace interactions, dynamics, job politics with your colleagues and/or your managers?

Do you believe that your performance review is inaccurate and/or were you put on a performance improvement plan that you believe to be unwarranted or insurmountable?

Are you unhappy in your current role as a whole or with parts of your role and responsibilities? Are you bored with the work you are doing?

Do you want to request a transfer, promotion or are you considering leaving the company?

Do you need assistance requesting additional compensation, bonus, benefits and/or perks?

Do you think that you are being targeted for termination either as part of a layoff or just as a one off firing?

Do you feel that you are working in a toxic or bullying environment and that there is no way out?

Do you understand, and have you received, the policies that apply to your workplace?

If you answered yes to one or more of these questions, then you may want to seek assistance to determine if it is time to transition to another role or if there is a way to modify your career trajectory at your current employer to a path that is more suitable to your needs and wants.

Donath Law, LLC offers guidance and job coaching with a legal perspective while empowering individuals to take charge and navigate their own career path.

Donath Law, LLC offers the ability to obtain job coaching as needed, whether it be just one time or daily, weekly, or monthly, etc.

No one should be unhappy at work or with their job or feel like they are at a loss with no where to turn. For more information about your options, contact Sheree Donath, Esq. at sheree@donathlaw.com or by clicking here.

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