“Asked to sign 30-day Notice of Termination based on Performance Criticisms – What Should I Do?”

Question: My boss and the HR Director have asked me to sign a 30-day Notice of Termination that says that, unless I improve dramatically, based on criticisms my boss filed, I will be let go. When I asked for examples of my alleged poor performance, I was told that examples don’t matter, just that I should accept my boss’s criticisms. I have refused to sign the letter, and HR placed it into my file, anyway. What are my rights regarding (a) asking for examples, (b) being able to respond, (c) possibly negotiating a confidentiality agreement that says they won’t speak badly about me if I am terminated. Help!!

Salvatore, from New York
(All names are changed)

Answer: First step, review my Newsletters and Q&A’s on Performance Improvement Plans in our Resource Center. You can do so by [clicking here].

Second, understand that there are very few, if any, “legal rights” regarding the ways such performance criticisms are handled by your company, its HR department, or your boss. Employers are generally free to run their companies as they see fit, at least in this area.

Third, that being said, YOU CAN NEGOTIATE ALMOST ANYTHING AT WORK, and I strongly urge you to negotiate for yourself in what is happening to you. How do you do that? Here’s how:

1. In writing, preferably email, DISPUTE THE FACTS. Send to HR and to your President or CEO, a list of the facts you believe are untrue, and note that you are being denied examples. Be clear, be respectful; be informative, not combative. Mention that they are refusing to give you examples – that seems “fishy.”

2. In that same memo, preferably by email, DISPUTE THE CONCLUSION. That is, if the facts are wrong, the conclusion that you have not performed well must be wrong, as well, as simple common sense. How could a conclusion be drawn without examples, facts, or illustrations? The only logical conclusion is there is no truth behind the allegations.

3. In that same memo, QUESTION THE MOTIVATION(S). Why is your boss acting this way? A form of discrimination; perhaps a type of harassment; maybe a variety of retaliation for insisting on honesty? Maybe your boss wants to hire her friend? Maybe HR is trying to cut costs, and want to avoid paying severance?

4. In that same memo, SUGGEST A DIFFERENT COURSE OF ACTION: For example, “To resolve this, I suggest an independent person investigate what has happened.” Or, perhaps, “I would be willing to leave if: (a) I get a fair severance package, and (b) this whole fiasco is held in strict confidence, and (c) I am given an excellent reference.”

“Pushing Back” at a poor performance review, or Final Warning, is one of the most important workplace negotiations there is. How we do it is above. If going to the President or CEO doesn’t help, consider going to the Board of Directors. This is a serious matter, even one of company integrity; remind them of their duty to oversee the company. I suggest that it may be wise, too, to consult with an experienced employment attorney, and to have him or her on “stand by” just in case you need it.

Hope this helps, I really do.

Best, Al Sklover