Smart employers use past performance rankings as the major criterion for laying off employees during a reduction in force. The reason is obvious: Since the rankings predate the layoff decisions, they’re almost impossible to challenge. Terminated employees can’t argue they were picked for other discriminatory reasons.
Recent case: John was an engineer. He was born in Iran and is a practicing Muslim. During the last years he worked for his employer, he was frequently written up for substandard performance and slow work, as well as poor communications skills. Severallisted those problems and numerically ranked him on a scale. He consistently got the lowest ranking among his peers.
When the company had to lay off scores of employees, it based its decisions on the performance rankings. John was one of the first terminated.
He sued, arguing he had really been fired because of his national origin and religion.
But because the company used pre-existing performance scores, the case was quickly dismissed. John was unable to challenge those earlier reviews or offer any evidence that they were cooked up as an excuse to get rid of him. (Daniel v. Universal Ensco, No. 11-20654, 5th Cir., 2013)
Final note: Be sure to let employees challenge their performance reviews at the time they are issued. Then note any objections (or lack of objection). That way, it becomes even more difficult for employees to allege later that the review was unfair.
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