The new uncomfortable truth about performance evaluations by employers in the American workplace is that they have become a frequent and persistent source of destructive disinformation. As a practicing employment lawyer, I review countless terminations for alleged “performance deficiencies” across a wide range of industries, including both private sector and government employers. During my sixteen years of employment litigation practice, it has become increasingly clear that employers have become entirely comfortable with drumming up false claims of performance deficiencies against high-performing employees to justify otherwise unjustifiable or illegal terminations. When employers decide to terminate an employee, whether it is for a legal or illegal reason, they simply begin to make up lies about the employee’s performance and then “document” these lies to support a “case for termination.”
This practice is promulgated by high priced employment defense lawyers who advise their corporate clients that to help avoid civil liability for unlawful or retaliatory terminations, they must create a history of poor performance or misconduct by the employee and “document” that history so it can be used as a defense to claims of discrimination, harassment, retaliation or wrongful termination. Never mind whether the employee is actually committing misconduct or performing poorly. As long as the documentation says there is poor performance, the employers are “covered.”
Work is Fundamental to Our Identities
The devastating effects of this all too common practice cannot be overstated. For most employed Americans, our work is the center of our public existence. Work is fundamental to our identity. Work is essential and integral to a meaningful and productive human life. Human beings derive fundamental concepts of their personality and self-worth from their work. Humans do not only work to live. They work to gain an identity and to contribute to the collective good. Our work is tied up with our aspirations, our hopes for the future, and our family’s well-being. No part of our economic existence is more significant. When an employer unfairly and falsely claims that our work, into which we have poured so much of our identity, is sub-standard or insufficient, the negative effects on one’s psychic well-being can be significant and debilitating. When one puts maximum effort, dedication, and the bulk of one’s time into a job only to be told that they must accept a made up lie that their excellent work is actually unsatisfactory by some often subjective standard, that person loses more than just a job. They lose their self-esteem and their belief in the core concept of the American dream: that hard work pays off.
Performance Defamation and Truth Decay
My daily experience with this insidious trend towards what I call, “Performance Defamation” is a symptom of a larger trend in our society. Over the past several decades, our national discourse has become subject to a condition called, “Truth Decay.” Truth Decay is defined as a set of emerging and related trends characterized by increasing disagreement about facts and analytical interpretations of facts and data, a blurring of the line between opinion and fact, and lowered trust in formerly respected sources of factual information. In short, facts have become a matter of personal opinion in this country. Performance Defamation is a perfect example of Truth Decay as it operates on the principal that as soon as an employer’s opinion of an employee changes, the facts about their performance instantly change as well. I cannot count the number of times I have seen employees with years long histories of excellent performance reviews, accolades and awards are suddenly deemed “incompetent” and “poor performers” right after they made a complaint of harassment or when a new manager arrives who does not like them or prefers another employee for some unknown reason.
The practice of dishonest performance evaluations has become so common place that it is difficult to question any more. Objective measures of performance are eschewed in favor of subjective measures of performance. Standards are easily altered such that minor infractions or common errors like typographical errors in draft documents are suddenly raised to the level of performance errors for the targeted employee while the same mistakes or minor errors are ignored for the other employees. Subjective measures of performance like, “communication skills” based on ordinary interactions are elevated to performance criticisms. Indeed, if the employer wants to find fault with a particular employee, it can do so whether there is legitimate cause or not. These false performance evaluation practices are so widespread they are not even questioned as ethical or legal anymore.
Absence of Laws Against Performance Defamation
In my experience, most working people fundamentally believe that it is wrong or should be illegal for an employer to simply concoct lies about their performance and use those lies to effect a termination of employment. Most of my clients are shocked that there is no law against this obscene practice. There is not. In fact, our courts have gone to great lengths to shield employers from liability for this sort of defamation. There is the “intra-corporate privilege” doctrine that allows employers to freely commit defamation against employees in the course of managing them. Many jurisdictions including Connecticut have such a privilege for corporate communications. See, Torosyan v. Boehringer Ingelheim Pharms., Inc., 234 Conn. 1, 29, 662 A.2d 89 (1995), which states, “[C]ommunications between managers regarding the review of an employee’s job performance and the preparation of documents regarding an employee’s termination are protected by a qualified privilege. Such communications and documents are necessary to effectuate the interests of the employer in efficiently managing its business.” This doctrine specifically protects employers from Performance Defamation and allows them to discredit and denigrate an employee’s performance based on any subjective or even false criteria it chooses. Our courts have long protected employer’s rights to “manage their employees” over the employee’s right to fair and honest treatment in the workplace.
Thus, the law permits unfettered Performance Defamation against employees who have little recourse to investigate and to prove their own good performance. CNN reported on a very recent example of this is occurring in the federal workforce as the Trump administration is culling government employees in mass numbers. The Trump administration is claiming that it is carefully terminating only low-performing and probationary employees, when in fact, many of the terminated workers have had recent promotions or excellent performance reviews (Zachary Cohen, Ella Nilsen, Rene Marsh and Sunlen Serfaty; CNN Politics; ‘Indiscriminate madness’: DOGE claims firings target low performers and new employees. The reality is far from it; CNN.com, February 20, 2025). This may be surprising to many but this type of mass performance gaslighting is the norm in corporate America. “Poor performance” simply means your employer wants you gone. While CNN calls it, “Indiscriminate madness,” it is nothing new. It is certainly not surprising to employment lawyers. The same “madness” is taking place among private sector employers as well as in state and local governments. The current administration is simply employing a well-used playbook to rid itself of employees.
Performance Improvement Plans Promote Performance Defamation
One of the most deceptive tools in the employer’s Performance Defamation arsenal is the Performance Improvement Plan or “PIP.” The PIP process is intended to make the employer appear as if it is giving a poor performing employee notice of their sub-standard performance and a structured, measured opportunity to improve that poor performance and to thereby avoid termination. Sounds fair right? Nothing could be further from the truth. As an experienced employment attorney who advises employees through the PIP process on a daily basis, I can tell you that a PIP means you are already set to be terminated. Once you are on a PIP the employer will not let you improve or save your employment regardless of what you do, they are just “documenting” your poor performance (never mind that your performance may be good or even excellent). The PIP is a complete sham in almost every case as the employer inevitably sets either unreachable and unrealistic performance goals or simply makes the improvement criteria so subjective that any performance can be characterized as sub-standard. The PIP is Truth Decay in action.
“How Can They Do This?”
While most working Americans believe that they are entitled to fair treatment at work, to honest evaluation of their performance, and that they should be protected from arbitrary loss of their job, the law does not provide for any of those things. As an attorney who often has to answer an employee’s desperate question: “How can they do this?” I can say that the law is far from reflecting our country’s shared values and beliefs about workplace dignity, honest treatment, and fair conduct. Our legislatures and our courts should be looking at comprehensive review and expansion of the basic rights of employees to fair and equitable treatment. Protecting employees from Performance Defamation and changing the flawed principle of “employment at will” would be a great start. While the law tells employers that they can do whatever they want to employees, no matter how dishonest, the American people expect better. We should start demanding it.
Have you been treated unfairly at work? Call Carey & Associates, P.C. 203-255-4150 for a consultation or email info@capclaw.com.
