Employee performance not up to snuff? You must communicate your concerns

Employees who lose their jobs have an incentive to sue and look for possible discrimination as the reason they were fired. But to win a lawsuit, employees have to show that they were meeting their employer’s legitimate expectations.

The flip side of that coin is that employers have an obligation to make sure employees know what kind of performance is expected of them. If they’re not doing a good job, it’s essential to let them know, preferably in a counseling session that tells them what they need to do to improve.

Under no circumstances should you wait until you’re ready to discharge the employee to put criticism in writing. That creates the suspicion that you came up with reasons as a cover for illegal discrimination. Instead, document bad performance early and often.

Recent case: Shener Greenidge went to work for Costco Wholesale as a loss-prevention officer. It be­­came obvious that she was pregnant.

She was terminated shortly after she was hired, allegedly for a series of performance problems. Her supervisors would later claim she was rude, didn’t listen to her training supervisor and spent too much time shopping and testing the food samples that Costco offered throughout its store.

Greenidge sued, claiming none of it was true. In fact, she alleged she had been told she was being terminated on account of her pregnancy. She also claimed she had overheard several managers talk about her pregnancy and its negative effect on operations.

The judge said she had enough evidence to take the case to trial, reasoning that a jury might believe Greenidge’s account that she was told she was being terminated be­­cause she was pregnant. If true, that would be direct evidence of discrimination.

The judge said a jury might also believe that Costco used poor performance as an excuse to get rid of her.

The problem for Costco: There was no paper trail showing earlier discipline, no signed performance evaluations and nothing to show Greenidge knew about the complaints against her before she was terminated. (Greenidge v. Costco Wholesale, No. 09-cv-4224, ED NY, 2012)

Final note: Be very specific when discussing poor performance. Put it in writing and suggest ways to improve. Have the employee acknowledge the need to improve and have her initial the improvement plan.

That helps the employee improve her performance if she chooses to—and gives you solid documentation to fall back on should a dispute wind up in court.