Issue: When it comes to, timing is everything.
Risk: Hastily scheduling a bad job review right after an employee lodges a complaint could appear retaliatory.
Action: Stick to a regular schedule of employee reviews, but document (and discuss) performance and behavior issues as they occur.
Warn your supervisors that if they quickly schedule negative employee reviews—particularly after an employee files a complaint—they could appear to be papering the employee's file in advance of a retaliatory firing, which won't look good in court.
That's why it's vital to conduct honest evaluations on a regular schedule and provide ongoing feedback (and keep notes in a performance log) throughout the year.
As the following case shows, negative evaluations alone aren't usually enough to trigger lawsuits. But you can spark a retaliation suit by reacting to an employee's complaint with an unscheduled review focusing on "newly discovered" deficiencies.
Case in point: Jane Turner, a well-respected FBI agent, earned sparkling reviews until a new male supervisor arrived. When she was passed over to lead a high-profile murder case, she complained to her supervisor's boss about the snub.
Soon after, Turner received a new, unscheduled evaluation that rated her "minimally acceptable/unacceptable." Turner's supervisor transferred her and called her "a very troubled agent."
She quit and sued, citing retaliation. The court gave the OK for the lawsuit, saying that evaluation alone wasn't grounds for a lawsuit, but the timing of it was. (Turner v. Gonzales, No.04-3426, 8th Cir., 2005)
Final tip: If you need to conduct an unscheduled review (perhaps because the employee's performance suddenly deteriorates), make sure you document and support your reasons for the downgrade. Cite specific, performance-based examples.
- Government agencies: Ensure last-chance agreements allow for pre-termination hearings
- Terminating without giving a specific reason? Document rationale for the record, regardless
- When crafting arbitration agreements, consider effect of PAGA on class actions
- Is there a 'cooling off' period for layoffs?
- Treat SSA 'No Match' Letters Separately From I-9 Issues