“Negative Performance Review without Warning; Is There a Case?”

Question: Hi, Alan, 

I am a senior individual contributor at a big company. Last year was my first year there. I applied for a job in one group but got assimilated into another group though both groups are in the same organization. As such, I never got a different job description, and none of my three different managers during the 12 months ever sat down with me to explain to me my job expectations. 

I successfully completed all of the projects they assigned me, and then at annual performance review time I was given a “less than satisfactory” rating. They said that I am a senior resource and should have done more and should have known to do more, that is, should have asked for more challenging projects. I said it was unfair that they never mentioned any issues to me during the entire year, and never set proper expectations. 

They refused to change my rating and I am thinking of approaching HR and perhaps even taking legal action if warranted. Do I have a case here? 

Your advice and insights are much appreciated.

Silicon Valley, California

Answer: Dear Johnny: Your question is, for me, a really good one for several reasons: (a) lot of people ask it (or a version of it), (b) it brings up some pretty important issues of law, negotiation and working wisdom, and (c) gives me a chance to discuss my new idea of a “PVP.” Here we go:            

1. What I see here is more a Failure of Management than an Employee Performance Problem. Johnny, what you describe for me is a series of errors by your managers that culminated in a failure to derive proper value from an obvious valuable employee. The “symptoms” of this “illness” include: (a) lack of clear job description, (b) a revolving door of managers, (c) no warnings regarding deficient performance, and (d) an understandably – though unfortunately – dejected employee. The portrait you paint in your letter is exactly the portrait so many other of my blog visitors paint, but yours is a relative masterpiece. 

The last “symptom” of this kind of management failure is scapegoating of the employee, that is, “It is your fault.” Poor management is not your fault, should not be blamed on you, and this dishonest performance review is just another example of it.   

2. I don’t think an appeal to Human Resources – at least the kind of appeal you are contemplating – is a viable alternative. Now, don’t think I am an “HR-hater,” because I am not. In fact, I counsel and represent many HR professionals, and they are overall a great bunch of people who are often “between a rock and a hard place.”  

That said, HR’s job is to assist management in its “acquiring, maintaining and eliminating human resources” – who are much more appropriately described as “employees” or “human beings.” So, you can expect, and must expect that HR representatives, while of the best intentions, will likely side with your managers, who are, in effect, their clients. Any other expectation on your part – that they are “enforcers of fairness” or the “employee’s friend,” would just not be reasonable.   

My “blog family” all know that I am a big believer in “standing up and pushing back” at incorrect Performance Reviews and Performance Improvement Plans (“PIP’s”). It’s just that I think it ought to be done in the most effective way.  

3. I truly do not believe you have a “legal case,” at least not now. When lawyers are asked the question, “Do I have a case?” they think of two things: (a) “Is there an applicable legal theory to use?”, and (b) “Are there any presently-existing financial damages?” While in these circumstances we might use the legal theories of breach of contract, misrepresentation or fraud, all of them in this circumstance would be something of a “stretch.” Additionally, at this time there are no identifiable or quantifiable financial “damages” to sue for.

Should you be terminated as a result of this dishonest Performance Review, my view of your “Case” would be that it is not a “stretch,” but may well be on solid legal ground. I would be even more inclined to say you have a legal case to pursue if you were fired on the basis of this Performance Review after you rebutted it. 

Not having a “legal case” surely does not mean that you do not have a “negotiating case,” or that all is lost. I enthusiastically encourage employees who have been subject to false, fraudulent, incorrect or improperly motivated performance reviews, or performance improvement plans, to “push back” in a kind of negotiating. There are many articles, newsletters and videos on my blogsite that explain “What to Do and How to Do It“™.     

4. Your first path forward should be to “Push Back” to a senior member of management, not HR. The job of Human Resources is not to provide fairness or truth, but to support management in its “management” of “human resources.” For this reason, an appeal to Human Resources is not the way I suggest people in your circumstances approach this problem. 

Instead, I suggest you take your “appeal” to a “Manager of your Managers,” that is, someone higher up the “food chain” of corporate life who can, and hopefully will, tell HR to resolve your concern. If HR is left to its own devices, it will almost never disagree with the managers who they, in effect, serve and sometimes even report to. 

Your most attractive path forward is a two-step approach: providing the “Manager’s Manager” with both (a) a strong Rebuttal, but also (b) what I call a Proven-Value-Presentation (“PVP”), which is the opposite of a Performance Improvement Plan (“PIP”).  When employees are given unfair and dishonest poor Performance Reviews, the next step in the unfair and dishonest process that often takes place is a Performance Improvement Plan (“PIP.”) In a vast majority of PIP’s, I am sorry to say, employees are just further unfairly reviewed, compounding the unfairness by using the first unfair Performance Reviews as “evidence” in the next unfair step, and then, sooner or later, giving the employee the unfair and dishonest option of “resign or be fired.” 

I wish it was not the case, but it is so often the case that these measures are undertaken to eliminate “positions” and “overhead” – what I prefer to call “working people” – without severance, without unemployment assistance, and without basic human dignity. 

5. The first step in standing up for yourself is a Performance Review Rebuttal, which seeks to respectfully but with conviction “set the record straight.” Such Performance Review Rebuttals should be addressed to a Senior Manager – not HR – and should address and correct (a) false information, (b) things taken out of context, (c) minor items blown out of proportion, and (d) improper motivations, such as retaliation, discrimination or fraudulent cost-cutting. 

We offer a Model Memo entitled “Model Performance Review Rebuttal,” you can adapt to your own facts and send to a Senior Manager to respond to the unfair and dishonest Performance Review you’ve received. It shows you “What to Say, and How to Say It,”™ just [click here.]

6. Recently I’ve starting using a second – more assertive – step with my clients, an idea I call “Proven-Value-Presentation.” My idea of a Proven-Value-Presentation, or “PVP,” is the functional opposite of a PIP: its purpose is to prove the employee’s value to the organization, to show that the “review of performance” must be faulty. 

This is the basic idea behind my idea of Proven-Value-Presentations: If clients are happy, if sales are up, if colleagues are pleased, if subordinates are motivated, if costs are down, if quality is applauded, if profits are rising, and if feedback is glowing . . . could performance possibly be poor? A PVP does not have to be formal, but should be in writing, and sent by email, as should all important workplace communications. 

These two steps are available to you, they are the most effective responses to receiving an incorrect performance review, and also are “balanced” in that they (a) point out and address the wrong, and (b) exhibit and emphasize all that is right. 

Johnny, I hope this addresses your concern, and gives you some sense of your options. Valuable employees should not be lost due to management failures. Instead, the “record” should be corrected, to the betterment of everyone’s interests. 

My Best to You,
Al Sklover 

P.S.: One of our most popular “Ideal Packages” of forms, letters and checklists is entitled “Ultimate Performance Review Package” consisting of three Model Letters: Before Review, Enhancing Your Chances of a Positive Review, and Two After Review, one Requesting Rebuttal Forms and Procedures, and one Model Rebuttal to Performance Review, plus our 141-Point Guide and Checklist for Performance Review.” To obtain a complete set, just [click here.] Delivered by Email – Instantly! 


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