“The paranoid person is never entirely mistaken.”

– Sigmund Freud

ACTUAL CASE HISTORIES: Quite frankly, there are so many actual case histories of “New Manager Risk” that I could write an entire book on the subject. A large part of my law practice over these past 35 years has been devoted to severance, and I have identified five or six situations where we can almost expect our client to lose his or her job. Putting aside for the moment the “large-scale downsizing” category, the “New Manager” category is one of the most common “one-off,” or individual, job loss situations.

I often describe “New Manager Risk” this way: (1) new captain takes over the ship, (2) new captain is eager to show how much improvement she can bring about, (3) he thinks his best path to improvement is the hiring of a “new crew,” (4) she thinks that people she has known from other teams she has worked with will be very loyal, as well, and (5) one by one, the “old crew” are convinced, coaxed or coerced to “walk the plank.”

Sound familiar? I’d be surprised if it didn’t.

While I am confident everyone has seen or experienced this very scenario, I am absolutely certain that everyone will, sooner or later, come across it, themselves. Hopefully, when it happens, it will not happen to you.

LESSON TO LEARN: The lesson to learn here is quite simple: if you are assigned to a new manager, or a new manager is assigned to you, you need to be at least a touch extra vigilant, and consider taking extra steps to do all you can to keep your job. So, the first step is enhanced vigilance, the subject of this newsletter.

***Note that in coming weeks, we will write another newsletter about steps you can take to counteract “New Manager Risk” in order to keep your job. It will be entitled “New Manager? – Addressing the New Risks.” In the meantime, consider what events and circumstances you should look out for, as explained below.

WHAT YOU CAN DO: Here are eight things you can be on the lookout for if either you are assigned to a new manager, or a new manager is assigned to you:
Read the rest of this blog post »

Question: Dear Alan: I am considering writing a rebuttal to Human Resources to a vague, unfair comment made in my last performance review. I feel it was used to keep me from getting a raise.

When I asked my manager to explain the comment he could not do so, or even supply details. But, at the same time, he also said he would not change the comment.

What are the possible and most likely outcomes to writing a rebuttal? Will it damage my relationship with my manager? Will l look bad to future employers. Thanks in advance!

Concerned
Detroit, Michigan

Answer: Dear Concerned: To one degree or another, your question is undoubtedly on the minds of every employee who considers standing up for himself or herself at work. It is a threshold issue, and it needs to be addressed, one way or the other. Read the rest of this blog post »

“The only perfect person
is a perfect idiot.”

-       Sklover Household Saying

ACTUAL “CASE HISTORIES”: For nine years, Margaret, was universally considered a top performer in her position as Vice President of Vacation Residences for a diversified real estate company. Time and again, internal audits showed her division to be among the most efficient, profitable and growing in the company. Year in and year out, Margaret’s performance reviews were either “exceeds expectations” or “meets all expectations.” What’s more, Margaret had received significant bonuses, promotions and awards for her good work. That is why Margaret didn’t see it coming.

In February of each year, Margaret’s company disseminated annual performance reviews. During the past year, Margaret’s division did not prosper, due to the economy, but it did not suffer, either. And she had not received any negative reports, comments or complaints. As she had each year before, Margaret received word she was to meet with her supervisor to go over her annual review. Nothing new in that; that is what happened each year. Another reason that Margaret didn’t see it coming.

When Margaret met with her supervisor, as was the custom, Margaret was handed a copy of her annual review to read before the two discussed it. As she opened the papers before her, Margaret was startled to see a few comments that seemed negative, and a few “needs improvement” boxes checked. When she saw her overall evaluation to be “Partially Meets Expectations,” her first thought was “They must have given me someone else’s performance review by mistake.” No such luck; it was hers, and it was brutal.

Margaret went silent, and barely spoke a word throughout the entire meeting. As requested Margaret signed her name at the bottom of the last page. Afterwards, she walked straight over to Human Resources, and shared her feelings of upset, anger and betrayal. She was told there was nothing she could do. She was told performance reviews are “not negotiable.” She was told that perhaps she should consider whether her job was really the right fit for her. She was told perhaps she should consider looking “elsewhere.”

She just never saw it coming. Worse still, far worse: she did not know where it was headed.  

LESSON TO LEARN: In the first 25 or so of my 30+ years of working with employees, I shared the commonly held view that Performance Reviews were “no big deal,” that they were not usually cause for concern, and that they surely were not anything an attorney was involved with. The past five years or so has made me feel quite different.

Today, I find that issues of Performance Reviews, and their “cousins,” Performance Improvement Plans, to be among the top reasons people contact me, or review my blogsite. And, yes, I have come to view them as something that an attorney can – and should – help employees with.

That is because they are sometimes “corrupted” by (a) false information, making them potentially fraudulent, (b) improper motivations, such as discrimination or harassment, (c) damaging to professional reputations, and (d) in my humble opinion, increasingly being used to deny employees what they have earned, the protections supposedly afforded them by company policies, or even their jobs. Yes, I have come to view Performance Reviews as sources of significant problems in the workplace.

That said, I am of the view that “for every problem there is a solution.” I strongly suggest that every employee who believes that his or her Performance Review is incorrect, improper or otherwise “corrupted” should respond in an appropriate and effective way. I am also of the firm opinion that, if not addressed promptly and thoughtfully, a negative Performance Review can become a much greater problem, potentially leading to a lower bonus, diminished chances for advancement, loss of ability to transfer within the company, or even job loss.

That is to say, a robust Performance Review Rebuttal both addresses the past, and protects the future. Its goals need to be: (1) to make a correct and true record of your performance; (2) to ensure that negative consequences do not follow, whether a Performance Improvement Plan, a reduced bonus or even job loss; and (3) to show the Reviewer and others that the employee is capable and prepared to defend his or her performance record, and hence his or her career and your family.

Gone is the time that an employee who receives a negative Performance Review can simply say, “Oh, well, I will just try harder next year.” That time is long gone. These days, and henceforth, those facing a problematic Performance Review have no real choice but to submit an effective Performance Review Rebuttal. Here’s how.

WHAT YOU CAN DO: Here are 16 Steps to a Robust Rebuttal to a Performance Review that is  inaccurate, misleading, wrong, unfair, dishonest or otherwise problematic:    Read the rest of this blog post »

“It doesn’t matter if a cat is black or white
so long as it catches mice.”

-       Deng Xiaoping

ACTUAL “CASE HISTORIES”: This newsletter issue does not start off with a “case history,” as most do, because there are so many “case histories” on this subject already known to our readers. Each year – and often twice a year – many employers engage in performance reviews of their employees. A significant amount of time, effort and expense goes into the performance review process. 

Ostensibly, the purpose of a performance review is, simply, to review performance. But for what reasons do we do that? A number of reasons come to mind: (a) to give feedback to the employee about those areas of endeavor that can be improved; (b) to determine who should be promoted or demoted; (c) to determine how much of a raise or bonus the employee should receive; (d) to keep everyone focused on performance criteria; and (e) to suggest specific objectives and goals going forward. There are many others, too. 

However, at times the higher purposes of any human endeavor can become corrupted when being put into practice. It’s just a fact of life that those whose job it is to serve us sometimes serve, instead, their own interests. That is why so many of us knowingly laugh at “I’m from the government and I’m here to help you.” After all, humans will be human. Anyone who claims that bosses and HR representatives are better – or worse – than all other humans is simply spouting foolishness. They are humans, period, capable of both noble and ignoble acts.    

In practice, sometimes performance reviews can get corrupted, and end up serving improper purposes, such as: (a) personal animosity; (b) retaliation against those who have reported wrongdoing; (c) denial to people of the bonuses they have in fact earned; or (d) to lay a false foundation upon which to fire people. There are others, too. Sadly, in our experience and in the experience of our clients, the frequency of “corrupted” performance reviews seems to be on the rise.    

Whether your performance review is based solely on your performance, or corrupted by improper purposes, there are things you can do to affect your performance review by ensuring that you are reviewed in the most positive light. We call them “Performance Review Enhancers.”  

LESSON TO LEARN: Whether your upcoming performance review will be properly conducted or improperly conducted, you can influence the light in which you are reviewed, thereby increasing the odds that you will be viewed in the most positive light, so that it serves your interests to the maximum degree possible.  

“But,” you might ask, “since my employer permits me to submit a self-assessment, isn’t that enough?” The answer is “No.” Self-assessments, when used as a part of the performance improvement process, are limited by design as to (a) the subjects you can address, (b) the ways in which you can address them, (c) what additional information you can offer, and (d) who will see your self-assessment. We always counsel clients to go above and beyond those limits.   

The basic idea is to ensure that the most positive information regarding your performance is known, and makes its way into your performance review, and that false, incorrect, and harmful information does not make it into your performance  review in the first place.

For this reason, about six weeks before your next performance review, we highly recommend you take the time to prepare and transmit to your supervisor, manager or department head what we call a “Performance Review Enhancement Memo,” which is simply “all the good news you can muster.”   

Remember that no one will promote or protect your interests if you don’t do so yourself. And remember, too, that the best defense is often a good offense. Preparation is the key. And please never forget this fact: more jobs are lost due to performance reviews than due to any other reason.  

WHAT YOU CAN DO: Here are 12 practical steps you can take to ensure the most successful performance review possible. Each is a step to take in preparation of your own “Performance Review Enhancement Memo.” While not all of our “Performance Review Enhancers” may be applicable to your circumstances, it is quite probable that at least some will be. Each step is a step toward job security and potential advancement, and is so in your interests.      

Read the rest of this blog post »

Question: Hi, Alan. A co-worker of mine named Mary is on a Performance Improvement Plan. Her former manager, Lisa, has left the company, but is sharing the fact of Mary’s Performance Improvement Plan with other people, both inside and outside the company.

Mary feels that what Lisa is doing is an invasion of her privacy, and a violation of the company’s confidentiality policy. Mary has asked HR to intervene, but they have not done so.

Can Mary go to Court to try to get Lisa not to pass around the information about her PIP? If the company continues to ignore Mary’s requests, can Mary sue the company?   

Bill H.
San Jose, California

Answer: Dear Bill: I’m afraid that there is no “legal” way Mary can assert a violation of her right to privacy. Here are my thoughts.  

1. Employees do have certain “privacy rights” under the law, but they are limited primarily to medical information and unauthorized use of name, photo and voice. When it comes to employees’ rights to “privacy,” federal and state laws do provide some protection, but not much. Surely medical information about an employee must be kept strictly private under the federal “HIPAA” law (short for Health Insurance Portability and Accountability Act of 1996). Also, many states – and California in particular – prohibit the unauthorized use of an employee’s name, photo, and sometimes even voice. And, too, no employer may put a camera in a bathroom stall, to videotape people in the toilet; that would be a criminal offense. Note that these laws protect intimate information about the employee as an individual, but they do not protect information about the employee’s relation with his or her employer, which is generally seen as the company’s information, which it can protect – or not protect – at its own discretion.      

2. Employees also have a right of privacy to engage in most “out-of-office” conduct, but “in-office” matters are not included in that “right.” More and more states are passing laws that give employees a general right of privacy to engage in any lawful activity so long as they are off of the employer’s premises. California has a specific law, California Labor Code Section 96(k) that says just that. So, for example, no employer can tell an employee what church, synagogue, mosque or other religious center he or she can attend during his or her own time. However, some legal conduct practiced on an employee’s personal time outside of the employer’s premises can be prohibited by an employer, such as working for a competitor, because that might bring about sharing of company secrets. And, of course, no airline pilot can smoke marijuana on the weekend, even if it is not illegal where he or she lives, because marijuana consumption may impair his or her performance the next day, and for a number of days, and thereby endanger the lives of airline passengers, among others. Note that these laws focus on “off-work-premises” conduct, and do not prohibit an employer from managing its own “on-premises” affairs as it sees fit.

3. Employers have rights, too, and one is the right to conduct their business affairs with confidentiality or without confidentiality, as they see fit. There is no question that most employers have policies that require confidentiality about their business affairs. However, employers are free to have whatever policies they wish, and to enforce – or not enforce – their own policies, so long as they do not do so on the basis of race, religion, gender, age, disability, national origin, sexual preference, and certain other classifications of people, which would constitute unlawful discrimination.   

4. Whether or not an employee is on a Performance Improvement Plan would not seem to me (a) highly personal, (b) out-of-office personal conduct, or (c) illegal discrimination, and thus not legally “protected” information. Though I am a dedicated employee advocate, I don’t see the fact of being placed on a Performance Improvement Plan to be in one of the three “prohibited categories,” that is, either (a) intimately personal, (b) lawful activity outside of the workplace, or (c) directed at one certain “classification” of people, and so, I do not think it is capable of protection using the law.  

5. It’s an unfortunate fact, sometimes not fully appreciated, that sometimes we must either accept the ways of others, or find others – including employers – with whom to associate. It may seem a bit uncaring and heartless, but this may be one of those “wrongs” for which there is no legal “right.” There are many, many things that people do to one another, and that includes both employers and employees – and in this case it is a former employee – that are mean, hurtful, irresponsible, and even cruel, but the law does not offer protection against all of them. Instead, it is up to the individual to either put up with it, or to find another person or company to affiliate with. Though there are so many more employees in the world than there are jobs – some estimate the “job shortage” to be in the billions – the best an employee may be able to do in one of these circumstances is to seek a new employer elsewhere.

6. I would suggest that senior-most management, or even the company’s Board of Directors, may be of greater assistance than Human Resources has been. Many people incorrectly view Human Resources to be their “protector,” or the “giver of fairness,” but that is not their job, and that is not their function. Simply put, “Human Resources manages Human Resources for management.” For this reason, many people give up if an HR representative does not help them. That is self-defeating, because there are other avenues available, including “going to the top” in a respectful email, describing the situation, and asking for good-faith response. I really mean it when I say that this approach is very much overlooked and underutilized; many of my clients get what they seek in this way. I highly recommend it to your friend, Mary.   

Thanks for writing in, Bill. Though it may not be the answer Mary was hoping for, it is always better to know the truth.

Best,
Al Sklover

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