Very often, someone will come to our office having just been fired, feeling that the reason given by their employer just doesn’t make sense. For example, a seasoned marketing executive loses his job shortly after his company brings in a team of young consultants. When the marketing department turns its focus exclusively upon social media, his role and responsibilities are gradually minimized. Eventually, he is terminated and replaced by several of his own former trainees.
In another instance, a Senior Benefits Administrator with 30 plus years of stellar performance is suddenly criticized by her new manager as, “incompetent” and “not a forward thinker”. She is placed on a performance improvement plan (PIP) and her workload is increased so much that she can no longer keep up. Meanwhile, the company posts a job ad for an entry level Benefits Administrator. After the new hire has shadowed her for a few weeks, her manager fires her for failing the PIP.
In yet another instance, a Strategy Analyst is abruptly demoted after over a decade in his supervisory position. He is assigned to “project work” as his role in the firm is slowly marginalized. The firm’s turns its employee recruitment efforts on finding “young”, “energetic”, “enthusiastic” new graduates. His compensation is drastically reduced when the firm decides to allocate the lion’s share of the annual bonus pool to its new hires. When he complains, he is warned that he could easily be replaced by a kid right out of school for a fraction of his salary.
Age discrimination occurs when an employer treats an individual who is qualified for their job differently because of their age. The federal Age Discrimination in Employment Act (ADEA) protects job applicants and employees 40 years of age and older from discrimination on the basis of age. Many states, including Connecticut, have similar laws protecting older individuals.
You may be a victim of age discrimination if:
Your performance reviews start going down as you get older;
Your employer makes frequent age-related comments;
You are disciplined for behavior that younger employees are not disciplined for;
You are passed over for promotions in favor of younger employees;
You are reassigned to unwanted or unpleasant tasks while younger employees get better assignments;
You are passed over for hire in favor of a younger job candidate or replaced by younger worker.
But proving that you were demoted or fired because of your age can be a difficult task. First, direct evidence of discrimination, such as your boss telling you he is firing you because you are too old, is very rare. Most employers will try protect themselves by carefully documenting a narrative explaining why your firing had nothing to do with age.
In each of the real-life examples above, the employer set up a pretext of poor performance to cover up its true discriminatory motives. If you are suddenly and inexplicably given a poor performance review or placed on a PIP, your employer may be building a pretext to pave the way for your termination. Knowing that your performance has remained consistent, you are blindsided by your supervisor’s sudden and inexplicable criticism. Attempting in vain to save your job, you then try to to work even harder. By the time you are terminated, you feel somehow responsible for failing at your job. It’s not your fault, it’s your age!
In addition to prohibiting employers from treating older workers differently than their younger counterparts, the law also prohibits policies and practices that have a “disparate impact” on older workers. This particularly insidious type of age discrimination occurs when an employer’s seemingly neutral policies have a disproportionately adverse impact upon older workers. For example, a company announces that it will be laying off all employees above a certain salary level. This policy has a disproportionately adverse impact on older workers who generally earn larger paychecks.
But courts are reluctant to second guess a company’s layoff policy, where the employer can show that it is a “business necessity”, in this case, cost-saving. In order to win a disparate impact claim, an employee would then need to bring forth evidence of an equally effective, but non-discriminatory way for the company to achieve the same goal. The cost-saving “business necessity” excuse makes disparate impact claims particularly hard to prove. Older workers tend to earn higher wages than younger workers by virtue of their added years of experience. Making the situation even murkier is that the impact of these “cost saving” layoffs tends to fall specifically on older workers in middle to upper middle management positions. In a case like this, the company’s officers, also over the age of 40, decide to get rid of its long-term managers and replace them with younger workers at lower salaries.
If any of these scenarios sound familiar and/or you just received a severance package, you should consult our employment lawyers. Please call (203) 255-4150 or email email@example.com.
By Jill Halper
A while back I blogged an article on Performance Improvement Plans and what they really mean for an employee who has just been placed on one, or threatened to be placed on one. More so than any other blog article I have written, this one received the most prolific feedback, with so many reaching out to express how much the article resonated with them and their experience with their current or former employer.
As a result of the positive response received, I have decided to provide to our readers a follow up article to expand on and provide greater detail into the ever offensive, likely unlawful, usually unfair and sham scenario that often wrecks tremendous havoc on one’s work life only to often be followed by an improper, possibly illegal termination.
The Law Related to Performance Improvement Plans
The best place to start with any legal discussion is with the law. As you likely know, the law is derived from statutes and case law, also called common law. In the matter of performance improvement plans as they relate to discrimination in the workplace, the statutory law is generally designed to protect employees. As discussed in my prior article on this topic, the federal law as promulgated in the ADEA, ADA and and Title VII of the Civil Rights Act of 1964, and as essentially mimicked by state law, prohibits discrimination and makes it unlawful to treat certain classes of employees (i.e. age over 40, race, religion, maternity, gender, sexual orientation, disability, national origin) adversely because of their age, gender, disability etc. As such, when an employer treats an employee adversely, such as a demotion or termination, for reasons based on any of those characteristics, it may be UNLAWFUL, and they could be found liable and subject to compensatory damages and sometimes punitive damages, which may translate into an increased severance package or a financial settlement to the grieved employee. The statutes also prohibit retaliation by an employer for any complaints or claims of discrimination made by any of these protected employees. In other words, if you believe that you are being discriminated against at work and you put your employer on notice of this and they subsequently terminate you, for no legitimate reason, you may also have a retaliation claim. It is important to note that placing an employer on notice does not necessarily mean filing formal claims against them. Simply communicating to them that you believe you are being discriminated against at work will suffice for this purpose. So, it is possible that you can make them aware that you are being discriminated against or treated disparately, and still go on to work there without issue. But it is more often the case that once you make these complaints, you are likely looking for a way out and they are likely looking for a way to get you out, so at least you have ammunition now to pursue a retaliation claim (in addition to a discrimination claim) if they do go and terminate you for no legitimate reason.
So how does this relate to the subject of the Performance Improvement Plans (PIPs)? As described above, while the statutes are pretty clear about the unlawfulness of discrimination and retaliation in the workplace, the case law helps set forth what constitutes discrimination and retaliation and how one would be able to make out a successful cause of action for these claims. And this is where it could get more complicated for the grieved employee seeking to prove discrimination or retaliation. In the landmark case, McDonnel Douglas Corp. v. United States, 411 U.S. 792, 793, 93 S. Ct. 1817, 1820, 36 L. Ed. 2d 668 (1973), the court established what has been termed the McDonnell Douglas framework which is used to this day in analyzing and determining liability in discrimination cases. Under this framework, where there is no DIRECT evidence of discrimination (such as an email telling an employee that they are too old and making too much money), and a claimant or plaintiff is attempting to prove discrimination by indirect evidence (such as they were treated differently than other employees) the employee/plaintiff must first make out their prima facie case of discrimination by showing that they were in a protected class, qualified for the job, and that they were treated adversely under circumstances giving rise to discrimination. The burden then shifts to the employer/defendant to show that the reason they were treated adversely was not related to being in a protected class, but rather was due to a legitimate work-related reason such as non-performance or some sort of disciplinary issue. Under the McDonnell Douglas framework, once the employer puts forth evidence that there was a “legitimate reason” for the adverse action taken against the employee, the burden shifts back to the plaintiff/employee to show that the supposed legitimate reason proffered by the employer is a sham, false or not legitimate and that the acts of the employer were actually motivated by discrimination.
A PIP Is a Tool Used to Fire You!
Your employer certainly understands how the discrimination laws work, as summarized above. Thus, it is equally important that employees understand this as well, especially those who are dealing with a PIP at work, so that they know what they need to do when faced with this situation. As discussed in my prior article, employers with discriminatory motives who are looking for a “legitimate” reason to terminate someone will use the PIP as a way of establishing and documenting a performance reason, even where none exists. As a result, the PIP is a tool used by employers not to help employees improve, but rather to help employers meet their burden of proving that the adverse action taken against the employee is “legitimate, and that their actions were not unlawfully motivated by discriminatory animus. Employers and in particular, their human resources departments, are well versed in discrimination law and they know that if they terminate someone in a protected class, they will be held to the above framework in defending a discrimination suit. Therefore, they must show that there are performance issues and that despite their good faith attempts to help the employee improve, the employee is deficient and there are solid grounds for termination NOT rooted in discrimination.
Methods Employees Can Use to Fight Back
So, what do you do the minute you learn that you are going to be placed on a PIP and you believe that it is unwarranted or not “legitimate”? Just as your employer is and has been plotting their defense by having placed you on this sham PIP in order to document the legitimacy of the adverse actions they intend to take against you, you need to start plotting a strategy that will help you keep or prolong your employment as well as a strategy for prevailing on discrimination claims once you lose your job – WHICH YOU LIKELY WILL – if you are placed on an undeserved PIP.
Lawyer Up, Your Employer Already Has
Given what has been explained above, the first thing you should do is call one of our employment attorneys. Your employer no doubt has counsel; you should have counsel as well given what is at stake. The future of your employment and your ability to earn a living is being messed with and you need to be well advised and to make sure your rights are protected. There are very specific deadlines called statutes of limitations which provide a certain amount of time within which you are permitted to bring discrimination claims, wage claims and whistle blower claims against your employer, at which time thereafter you are forever precluded from doing so. So, if nothing else you should understand what those end dates are. More importantly, and something an attorney will walk you though is how to formally rebut the findings in the PIP. It is important that your personnel file includes these rebuttals because if and when it gets to a point where you are terminated and bring claims, the matter will often hinge on the legitimacy issue and whether the PIP was warranted or not. Certainly, if you are being told that you need improvement in certain areas and you disagree, or if you are being told in your PIP reviews that you are not improving or not meeting the goals of the PIP and you disagree, that is something you want to document in writing and refute, so it is in your personnel file if and when you need it. Another tip we provide to our clients is to quickly and articulately inform your employer that you believe you are being treated unfairly or being discriminated against and that the PIP seems to be motivated by same. In doing so, that is something that can be used to help prove retaliation. This strategy can often buy you some more time at your job as the key to a retaliation claim is causation and the key to causation is timing of the termination relative to the claims asserted. If the date of termination follows closely the date of the complaint, it is easier to establish retaliation, and the employers know this. So, by lodging a complaint that places the employer on notice that you believe you are being discriminated, the employer might be less inclined to make a swift termination. While you will very likely be terminated at some point, making the complaint will often buy you some time, which translates into more paychecks and more opportunity to get your ducks in a row for filing formal claims and a potential lawsuit. Our office has additional tactics and strategies we use to help protect our clients when they are placed on or even threatened with an undeserved PIP, so feel free to contact us immediately, should that be you.
A PIP Can Be Considered An Adverse Action
One final important point relative to the PIP discussion is the matter of what is considered an adverse action. As mentioned above, the adverse action is an essential component of making out a discrimination case. While an adverse action almost always means a demotion or termination, it CAN also include other acts by your employer that materially alter or affect the terms and conditions of your employment. Case law here generally provides that an adverse employment action is one which is “more disruptive than mere inconvenience or alteration of job responsibilities” and usually is meant to include actions that cause a significant change in employment status such as hiring, firing, failing to promote and reassignment.” Terry v, Ashcroft 336 F. 3d 128 (2d Cir. 2003). However, there is some recent case law that has introduced a broader interpretation of what constitutes an adverse action and has determined that being placed on a PIP in certain instances may be an adverse action. In the case of Amato v. Hearst Corp., aff’d, 149 Conn. App. 774, 89A.3d 077 (2014), the court stated that the threat of termination of the Plaintiff under a PIP, “in conjunction with the Plan’s imposition of new, burdensome conditions of employment was sufficient to constitute an adverse employment action”. This case also discussed other factors to be taken into consideration when determining if the act of being placed on a PIP is tantamount to an adverse action, such as whether the mandates of the PIP restricted the employer’s freedom by requiring them to be in their office for longer periods of time than other employees. Another factor to consider is whether the PIP negatively impacts your personnel file and reputation in a way that might prevent future employment opportunities. In another case, the court held that whether an undesirable employment action qualifies as being adverse is a fact specific, contextual determination. Zelnik v. Fashion Inst. of Tech., 464 3d 217, 226 (2d Cir. 2006).
The bottom line is that the mere act of being placed on a PIP might constitute an adverse action in and of itself – even before and without a demotion or termination. This will often come down to the details and a totality of the circumstances analysis. In the event you believe the PIP is not justified, discriminatorily motivated and has materially altered your employment, you might have a case of discrimination just by having been placed on an unwarranted PIP by your employer. This also means that the clock to file a suit could start running from the date you are placed on a discriminatory PIP, which is another reason you should contact our employment attorneys immediately.
Attorney Jill Halper can be reached at (203) 255-4150 or firstname.lastname@example.org.
The next recession is now here, depending on the of source of information or this source. The Federal Reserve is reversing interest rate hikes to soften the economic expansion and the unemployment rate is at a 50 year low. We are well past the cyclical ten year timeframe as recessions go. What is your strategy to preserve your job in the face of this new recession? What is your strategy if and when you are laid off?
You are probably thinking, “what strategy?” You get up, go to work and hope you can continue to remain an at-will employees until the end of the new pay period, under the presumption you have no control over your job. Better yet, you planned on retiring from your company in the distant future. On the other end of the spectrum, there are employees who think their longevity with their employers will insulate them from any headcount reductions during recessions. Both viewpoints are wrong and employees can control their employment outcomes during a recession.
5 Strategies To Save Your Job During a Recession
The following strategies are followed by our clients when they see the “writing on the wall” by their managers. Although some clients never see the messaging from their employer, we do. Depending on how soon you pick up all the clues determines which strategy to pursue. Hint, the sooner you speak with an employment attorney the better. If we are engaged earlier in the process, we can evaluate and develop an aggressive strategy that will force the employer to maintain your employment and/or pay a larger severance package with more favorable terms.
Plan Ahead and Gather Intelligence From Managers and Coworkers
Are you proactive about your employment or do you follow the wait and see approach? Becoming proactive with your employer means obtaining objective feedback from your managers and coworkers. No, I am not referring to the annual performance review or 360 reviews. A proactive employee will develop an initial assessment of his or her own performance by quietly engaging in one on one discussions with managers and coworkers about their working relationship and performance. You will need to keep detailed notes of these conversations in order to track the information over time and over various contexts. Forget about the formalities of the annual review or the vague performance metrics employers follows. I am talking about all the intel you can gather by having a straight up ever day conversation with your manager and coworkers. Examine the body cues such as facial expressions, tone of voice and the context of conversations in relation to those cues. Observe more instead of being reactionary or defensive. The better you are at this task, the more intelligence you will pick up, as your manager or coworker will not know you are gathering information. Once you collected this information, you will need to strategize how to position yourself as a thought leader, influencer, leader and over-all get the job done kind of employee. Lead by example and always remain the consummate professional during all interactions with your employer and coworkers.
Ironically, your employer is collecting similar information about you and your coworkers. In a recent article from SHRM, “A good way to begin is by collecting information about the organization’s workforce that can be used for long-range planning. ‘[HR] should be looking at the data, knowing who is where in their careers, who is where in their teams’… ‘Are people ready to move into the next position? Are they happy where they are?’ Review job descriptions and tasks and determine whether responsibility for those tasks can be more evenly distributed throughout the team. By understanding the big picture, HR leaders can advise business leaders on how to ready the workforce for future changes without resorting to morale-damaging layoffs.”
File Internal Complaints of Discrimination to Maintain Your Job
Once we determine you are may be the victim of employment discrimination or have other employment claims, we will advise you about bringing these claims to your employers attention without escalating to an external governmental agency. The main idea here is to engage in a protective activity to force your employer to “back the heck off” and cause them to reevaluate your potential termination. Our longest standing record to keep an employee employed using this method is two years (my opposing counsel in that case was not happy, but I was not there to please him).
If necessary, you may need to file your discrimination claims with governmental agencies in order to preserve your legal rights. The same antiretaliation laws apply and employers will back off for a limited period of time in order to avoid you asserting an easy to prove retaliation claim.
Dealing With Performance Improvement Plans (PIPS)
Combatting those inaccurate, one-sided and self-serving performance improvement plans. We wrote about this issue in Are Performance Improvement Plans (PIPS) Illegal? A PIP is a clear indicator you will be terminated and you will need to engage an employment attorney ASAP!
Severance Negotiation Based Years of Service
This strategy is relatively straight forward. If you are slated for termination in a layoff, your employer may have a severance plan governed by ERISA, a federal statute that governs these plans. Essentially, an ERISA severance plan spells out the amount you will be paid a salary continuation based on the number of years you worked for the company. There is one catch, you will need to sign a waiver and release of all your legal claims against the employer in order to receive the payout. You will also need an employment attorney to review the settlement agreement to insert favorable terms or get rid of unfriendly terms like noncompetition agreements. Make sure when speaking with an employment attorney that he or she is an ERISA attorney, as there is a difference. Our ERISA attorneys know how the statute works and will even point out in certain cases that you can create an ERISA plan based on one employee, “you”, even though the employer never created an ERISA plan. Engage us to learn more.
Getting Rid of That Noncompete Agreement on the Way Out
Great, you will be getting terminated but your employer stuck you with a noncompete, either at the start of your job or as part of the severance agreement. What do you do? The noncompete does not benefit you at all, only your employer. Now you have to navigate away from jobs you would normally apply for given your years in the same industry. Is this fair? No. Someone has to pay the utilities, mortgage and household expenses, but do not count on your employer to do you a favor. I have long taken a stand against these selfish one sided agreements and forced employers to rescind them or obtain an order from the court to void them. We can help you remove your noncompete agreement with your employer and make you a free agent in the job market. We will challenge the validity of the agreement with the employer directly and if the employer does not back down, we will take them to court through what is called a declaratory judgment action. Essentially, we ask courts to void the agreement due to lack of intention by the employee to enter into the agreement, aka a lack of consideration.
If you need more help planning for your future employment issues, please contact an employment attorney in our office. Employment law is all we do.
If you have been placed on a Performance Improvement Plan (PIP) and think that this is an authentic and well-intentioned attempt by your employer to help you improve your performance at work, then think again. In truth, our experience counseling employees in these situations has consistently shown that an employer/manager only puts you on a Performance Improvement Plan as a mechanism to terminate you. Certainly, this is a hard dose of reality to swallow, as we all want to believe that our managers are there to guide and mentor us. But knowing that it is not the real goal and purpose of a PIP, will help you protect and position yourself as best as possible during this stressful time at your job. Please contact our employment lawyers in Fairfield County, CT if you’d like our guidance in navigating this challenging situation.
A PIP Is Intended to Set You Up For Failure
If you are reading this article and interested, you have probably already been placed on a Performance Improvement Plan or believe you are about to be placed on a Performance Improvement Plan, also sometimes referred to as a Performance Action Plan, and therefore likely know what this is. But for those who are unclear, technically a PIP is a plan presented by an employer to an employee when the employer believes said employee is experiencing performance related deficiencies. The plan often sets forth the alleged basis for the deficiencies and provides a set of tasks, goals and expectations to be met by the employee in order to realize improvement. However, make no mistake, these plans are designed to do just the opposite. They are implemented to set you up to fail.
Five Ways PIPs Make You Fail
How do they set you up to fail when they appear to want to help on their face? The answer to this is five-fold. For one, they impose standards and set goals and expectations that are unrealistically high and impossible to meet and succeed under. Second, the plans themselves create additional work and are so overly burdensome that complying with the additional requirements under the plan actually take your time and energy away from your basic job duties (the duties that you were supposedly having trouble doing or completing when you were NOT working under a labor intensive plan). Third, the employer/manager who decided that you needed to be placed on this plan also often operates as your evaluator while on this plan. As such, it only stands to reason that the employer/manager who placed you on this sham PIP, will similarly provide you with sham negative evaluations and sham negative findings throughout the PIP. Fourth, these PIPS, while operating under the guise of trying to help you, do not make any attempt to hide the fear and pressure they impose. Without question, the cloud of fear, criticism and intimidation under which an employee is forced to work on a PIP wreaks havoc on the employee’s psyche and creates a defeatist mentality. The employee quickly becomes discouraged, making it that much harder for the employee to stay positive and succeed. Lastly, a closer look at a PIP, and the actual execution of a PIP, will make it clear that there is little to no teaching, or mentoring taking place. The PIP, while aggressive in its critiques and exhausting in its expectations, usually provides NO actual help or guidance in getting there. Put simply, there is no genuine showing you how to improve, rather just a barrage of arbitrary and unreasonable assignments, observations, evaluations, goals and expectations to demonstrate “improvement.”
Don’t Walk, Run to An Employment Attorney!
So, this brings us to the next question… if the employer’s goal is to get rid of you, why go through the exercise of placing you on a Performance Improvement Plan in the first place, especially when the majority of employment agreements create “at will” employment arrangements where you can be terminated for any reason or no reason at any time. The answer to this question is exactly why you need legal counseling the moment you are placed on a PIP or believe you will soon be placed on a PIP. Our employment attorneys are to here to help you. Although most jobs are at will, employers are never permitted to terminate employees for unlawful, discriminatory or retaliatory reasons. In order to defend themselves against possible claims of discrimination or other unlawful actions taken against an employee, the employer will need to establish that an employee was terminated or treated adversely for cause. Therefore, if an employer has a discriminatory or retaliatory motive to get rid of an employee, they will need to create a narrative and calculate a plan by which to demonstrate that the employee was, in fact, a poor performer or provide other such cause for termination, in order rebut a presumption of discrimination the law provides to certain protected classes of people, such as employees over the age of 40, employees with disabilities, whistleblowers etc.
Employers Only Use PIPs to Defend Terminations
By placing you on a PIP, the employee is documenting your personnel file and setting the stage to rebut potential claims related to an unlawful termination. If they need or want to find cause to terminate you, they will under a PIP, given the overly burdensome requirements and arbitrary and impossibly high expectations set forth in these plans. Therefore, be warned, that placing you on an unwarranted PIP is a strategy used by the employer to demonstrate and document poor performance and failure to improve, when neither may be the case. And by doing so, the employer further shows that not only were you struggling in your job, but that the proper mechanisms were put in place to help you to improve, but you were unable to do so, thereby resulting in an apparent lawful termination for cause.
This scenario, as described above, is both common and especially disconcerting in a public school setting. In this context, highly experienced and tenured educators over the age of 40 are often targeted because they are at the top of the pay scale and can be easily replaced by younger teachers earning half as much. Because of their tenured status, these teachers may only be terminated at a tenured teacher termination hearing, which will be warranted after the school has found they are failing under a PIP. In most cases, public schools use a two tier PIP process whereby a teacher is first placed on an initial PIP and once they fail under that PIP, they are placed on an intensive PIP, under which they are even more certain to set up to fail. At any time during this intensive phase, the termination for cause hearing may be ordered. As such, being placed on a PIP has become a most feared and devastating event for these hard working older teachers who have devoted their lives to this honorable profession. Do you still think a Performance “Improvement” Plan is meant to help an employee improve and succeed? Our age discrimination lawyers in Connecticut don’t, and we will fight for you.
A PIP Can Be An Adverse Employment Action
Further to this discussion, in order to prove a claim of discrimination, an employee must show that an “adverse action” was taken against them by their employer. Because these PIPS have become well known springboards to termination, being placed on an unwarranted and undeserved PIP can be considered, in and of itself, an “adverse action”. As such, an employee should not wait to be actually terminated before seeking legal counsel from an employment lawyer in this situation. If you are a member of a protected class, as soon as you are placed on an unwarranted PIP; the adverse action has occurred; the writing is on the wall, and the end is near. In addition, once an employee places an employer on notice of legal claims of a discriminatory adverse act, if/when the employer does terminate you, you may want to consider asserting additional claims of retaliation. As such, we encourage you to seek legal counsel as soon as possible to document your discrimination claims and understand your rights and the statutory deadlines by which these claims must be filed. We also encourage you to keep a detailed narrative of everything that takes place as soon as the words “Performance Improvement Plan” are uttered, and to rebut in writing any determinations that are made prior to and during the plan, which you believe are a sham and unwarranted.
While we would love to be wrong about the so called Performance Improvement Plan, our experience in this area has unfortunately proved us right. Please do not hesitate to contact our discrimination attorneys if you are in this untenable and frightening situation, or with regard to any of your employment needs.
Attorney Jill Halper can be reached at (203) 255-4150 or email@example.com.