Most employers do not simply terminate high level executives, managers or other valuable employees out of the blue. Instead, employers like to at least make it appear that the company or agency provided some warning or counseling prior to the termination. A perceptive employee will understand just what a less than satisfactory review actually means. It’s more than a review of a time period. It may actually be a warning signal that the employer is laying the groundwork for termination.
The reason that employers provide this counseling first is that it will reduce the chances of a lawsuit. Many employees who intend to raise a wrongful termination or discrimination claim will meet with us, presenting prior annual evaluations or other memoranda that may influence the likelihood of success for a given employment lawsuit. Rest assured that an employee with no prior counseling letters or poor evaluations stands in better shape than an employee with a history of these kinds of documents. This does not necessarily mean that the employer didn’t discriminate or retaliate against an employee whom the employer laid this kind of groundwork. However, the employee may have a more difficult time convincing a judge or jury that none of the employer’s prior warnings were legitimate.
Therefore, the employee has to anticipate the employer’s intentions of laying the groundwork for demotion or termination. If you’re an employee making $175,000 annually, a not so great review is a big event. The reason that you should challenge it is not only to influence the effects of such a review, for example, a missed bonus, but to protect your overall job and career path.
We have counseled hundreds of employees over the years with these types of issues. From the Federal employee who received a “Letter of Counseling” for taking too much leave that was approved by his supervisor, to Chief Operating Officers of large corporations, being blamed for company woes during a recession.
What is the best approach? Does the employee immediately inform the employer he or she has retained counsel? How does the employee submit a response to counseling memoranda that lets the company know that he or she won’t take this lying down, but doesn’t come off as threatening? When is the best time to have a lawyer send a letter to the employer or file with the EEOC? What counseling is worth fighting about and what isn’t?
Another issue that both private and public employees contemplate is whether the employee should inform someone at the company or agency that a manager, director or supervisor is breaking the law in some way. How does the employee protect him or herself from retaliation, while putting the company on notice that a complaint has been filed? We have counseled many, many employees in that very situation over the years.
Don't be intimidated or nervous about asserting your rights. Contact our office today.