Ohio Employment, Labor and Worker’s Compensation Law

Posted By Charles J. Cochran, Jr. on February 21, 2009

The time of year for annual performance evaluations has probably passed and you were given a fairly favorable if not excellent performance evaluation at least as far as what was put in writing.  Your manager might have spoken to you about areas where you could use a little improvement but that is probably not reflected in the written evaluation or  it was so downplayed that you do not pay very much attention to it.  Now with the uncertain economy you have been hearing rumors of a layoff of employees which might be coming but you know that  because of your performance evaluations that you have little reason to fear the loss of your job.  You know in the past that the Company has always determined layoffs based upon performance rather than seniority or for some other reason.  A short time passes and a meeting is held or you receive a letter and you find out that you have been selected for layoff out of the group of workers which make up your department.  You have been informed the reason for choosing you for termination is your sub-standard performance in the department.  You say that cannot be as all of your performance evaluations were above average, excellent or outstanding and you have never been disciplined.  You realize that if the manager gave you areas to concentrate on for improvement that you have been working on them and the manager has not indicated dissatisfaction or he has indicated approval. Now as an employee you try to think of the real reason why your employer has selected you to be terminated.  The only thing that comes to mind is that you belong to a racial minority or you have spoken out in favor of the union, maybe you have complained about something which the Company has done to you or another you think is unfair or many other reasons which are not performance related.  As your mind keeps rolling over all of the real or imagined reasons that the Company is treating you this way you begin to think that you been treated unfairly. You know that the real reason cannot be your performance so you start trying to find out the real reason.

In our current economic times this story is probably playing out on a regular basis throughout our country.  The laid-off or terminated  employee now must deal with a job loss and financial uncertainty.  Now added to that the employee cannot justify in their own mind the reason for their job loss.  The employee expects that their performance evaluation was done accurately so they can only assume there is some other reason for what the Company has done.

As a labor attorney who finds myself dealing with these situations the area of performance evaluations is often important in determining whether there is some support for an employee’s claim they have been wrongfully disciplined or terminated.  Sometimes the Company loses sight of the purpose for the performance evaluation and they become simply another task for a manager to perform. Many managers do not wish to indicate poor performance by the employee since they must work with them on a daily basis and it also reflects upon their department.  These managers understand that if an employee has been performing substandard work they will need to take some action or risk a reprimand by their own supervisor.  For whatever reason the manager does not wish to take any action.  Many managers are not correctly trained in the method and purpose for the performance evaluation and downplay the importance of it.  Therefore rather than risking a confrontation with the employee or a comment from upper management regarding an employee’s performance the manager simply rubber stamps the performance review with above average or excellent marks and hopes to work through any problem, if one does in fact exist,  in a more informal manner.  To be fair to the Company there are some employees who have performed their work in a poor manner but because of the faulty performance review process the records which they themselves generated do not support their position.  To be equally fair with the employee they have given part of their life to their work and deserve to be given a truthful reason for their Separation from Employment.  Whatever the excuse the employee now has every reason to believe the Company is not being truthful in the way they are dealing with them.

If you are an employee who has been provided with above average or excellent performance reviews over a period of time and then you find yourself terminated or disciplined with one or more of the reasons stated for your termination as being poor performance then it would be only reasonable for you to think that there is some other reason for your termination. You have a number of choices and decisions to make and you understand that what ever action that you are going to take, if any, you must do so quickly.  The Company may have provided you with some form of severance package and asks that you sign a release in order to get it.  If you have a close relationship with your immediate supervisor you might inquire of them and be satisfied in their explanation to you.  You also might approach the Human Resources Department to question them.  If you have access to someone in upper management you may take the opportunity to inquire in that direction.  Or you might question someone else in the Company where you trust that their response will be accurate.  If you are satisfied with the answers, assuming anyone was willing to speak with you,  that you receive then you may stop there, if you believe the people that you spoke with, and go on with rebuilding your life.  If not, and you decide to take this matter farther, then you must determine whether to speak with the Ohio Civil Rights Commission (or the applicable State Agency in your State), the Federal EEOC or employ an attorney.  Whatever your decision you must make it promptly as a statute of limitations may apply requiring you to take any proper action within 180 days of the discriminatory act.  In some instances, such as a discriminatory action taken related to your filing of an Ohio Worker’s Compensation claim, you are required to take action within 90 days.

As an employee if you are placed in this undesirable situation then it is important that you make your inquiries and seek competent legal help at a very early date or you will risk losing any benefit or protection which the law might allow to you.  If you are the employer you can see that it is important that the managers who will be performing performance evaluations must be properly trained so that you may rely upon their evaluation in making your determinations as to any reduction in force.  Reductions in Force can be complex and you should coordinate them with the aid of legal counsel.  In closing it is suggested to any employer that “An ounce of prevention is worth a pound of cure”.  This is a difficult time for both the Employee and the Employer and every effort should be made to avoid making the situation more difficult.

Categories: Employment and Labor Law.
Tags: discrimination, employee, employer, performance evaluation