Generally, the value of a rebuttal to a performance review that you received and that you disagree with is very limited, and it usually will not make much of a difference. For instance, if the employer is about to terminate you or has already made the decision to fire you (as it often happens when a bad performance review is issued), and your bad performance review is just a paperwork that hey try to use to show that they are giving you another chance before terminating you, writing a rebuttal will not prevent that termination. However, if you still decide to write are rebuttal because you are eager to share your side of the story, makes sure that you follow the simple tips below:
1. Do not write lengthy letters analyzing and dissecting every line of your performance review. A brief, general rebuttal generally showing that you disagree with your review and explaining why shall suffice. There is no reason for your rebuttal to be longer than one page. And remember - the shorter your rebuttal is, the sooner that right person, who you want to read, will read it.
2. Be respectful. Writing in your performance review rebuttal all about how you hate your manager or the whole company, or how you can't wait to leave that awful places, etc., is not going to benefit you in anyway, and if anything will increase the chances of you being pushed out sooner than later.
3. Don't overreach or exaggerate. Don't accuse your boss or the company in your rebuttal of things that you simply can't prove - such as conspiring to get rid of you, etc. No one responds well to false allegations, and your employer is not an exception. If you believe that you have been discriminated or retaliated, submit a separate discrimination complaint to address that issue.
Suppose you resign from your job, and for whatever reasons your employer refuses to properly pay you for your last days of work, or your last paycheck doesn't include all wages do. May be your employer owes you as little as a couple of hundred dollars or a few thousands dollars, but you are still understandable upset, because you worked and you expected to b paid for that time. What is the best way to to recover that relatively small amount without getting involved in a legal process that's too complicated or costly?
The first step should be sending a formal, firm, but at the same time courteous letter requesting a payment to be made within a limited amount of time. You can write that letter yourself, or - if you believe that your former employer will be more likely to take your request more seriously if the letter comes from a lawyer - you can hire an attorney for that limited purpose of writing a letter, which shouldn't cost very much.
If the employer refuses to pay your final wages or ignores you letter, your next step should be filing a claim for unpaid wages with DLSE. The DLSE website is very informative and contains all the necessary information regarding regarding how to file a wage claim in California. The filing is free and a relatively simple process.
Most employers who owe a small amount to an employee will much prefer paying it shortly after they are notified of this filing by the Department of Labor, because even their initial legal fees to their lawyers for defending that claim will likely exceed the small amount they owe you, except in those cases where the employer dislikes you so much that they are willing to keep paying to fight you just for the sake of fighting.
In California, an employment relationship may be generally terminated by either the employer or the employee for any reason or no reason (except not for discriminatory or retaliatory reasons). This means that, unless they agree otherwise by contract, no reason has to be given for terminating the employment relationship by either party. (Cal. Labor Code section 2922). However, sometimes employers abuse the at-will rule by firing employees for reasons contrary to public policy as expressed in statutory and constitutional provisions. In response, courts have created an exception to the at-will employment principle: an employer may not terminate an at-will employee for a reason that violates fundamental public policy. This exception is enforced through a civil lawsuit for wrongful discharge in violation of public policy.
The first California court decision to recognize the wrongful termination in violation of public policy was Petermann v. International Brotherhood of Teamsters(1959). In that case, the plaintiff sued his employer after he was fired for refusing to lie and perjure himself during the investigative hearing before the Legislature. The Court of Appeal noted that it would be obnoxious to the interests of the state and contrary to the state’s public policy to allow an employer to terminate an employee on the ground that that employee refused to commit perjury. The court further stated that California Penal Code section 118, prohibiting perjury, derives from the general principle that the presence of false testimony tends to interfere with the proper administration of public affairs and carrying out of the justice.
In 1980, the California Supreme Court addressed the public policy wrongful termination claim in its landmark Tameny v. Atlantic Richfield Co. decision. In that case, the employer was found to be liable for terminating an employee for refusing to participate in an illegal scheme to fix retail gasoline prices, reaffirming that an employer’s obligation to not discharge an employee who refuses to commit a criminal act reflects a duty imposed by law upon all employers in order to implement the fundamental public polices embodied in the state’s penal statutes.
The state Supreme Court went further to define the framework of the public policy claim in Gantt v. Sentry Insurance (1920), finding that it is against public policy for an employer to terminate an employee for resisting the employer’s pressure to lie during the investigation of a co-worker’s sexual harassment compliant.
Today, the public policy claim is an important weapon in the hands of employees of were demoted or fired for refusing to engage in activity which is either criminal or otherwise against the fundamental public policy of this state.
While regularly reviewing documents and e-mails as part of case files, I run into mind boggling e-mails from employees to their supervisors. Here are a few examples:
(1) In reaction to a paycheck that didn't include reimbursement for expenses, the employee rights: "I will not tolerate being screwed out of my expenses, and I demand to be reimbursed by the end of the business day tomorrow."
(2) After being accused by a co-worker of harassment and before the investigation into the allegations was even over, the accused sends an e-mail to his boss: "I can't believe you all ganged up on me. I am not surprised by this back stabbing and I can't way to sue the hell out of you."
(3) After being denied raise, an employee sends the following memo to her manager: "This company's ungrateful ways are very disappointing to me, and I am seriously contemplating taking legal action, as I am the only African American who has been denied raise to the best of my knowledge."
I am not sure what made the writers of the above think that they could possibly benefit from this type of aggressive communication. I doubt that any employee has ever gained anything from any kind of harsh or threatening communication with their employer. If nothing else, it is counterproductive to trying to resolve any type of dispute - however small or large it might be. And surely no employer has ever promoted or extended any kind of gesture to an employee because that employee criticized them, accused them of some type of impropriety, threatened them, but many otherwise good employees were fired for this type of language.
Before you send your next passionate e-mail to your manager about all the work issues and frustrations you are dealing with, read your message and ask yourself - will the reader want to help you after reading your message or will he get angry at you and will want to retaliate against you by looking for a reason to punish you or even fired you? Does your e-mail complaint accusations that you don't really know for sure are true? Is there anything else in the e-mail overly presumptive or insulting that might be worth removing?
Making sure that you use proper language and tone in your e-mails to your management doesn't mean that you should sit quietly and tolerate harassment, discrimination, retaliation or any other type of bad treatment. However, this does mean that your communication style should be civil and diplomatic at all times, even when you are complaining of these very issues.
Here is a common question from a non-exempt / hourly employee: "I was told by my boss not to work overtime, but it's impossible for me to complete all my work in 8 hours, and I have to stay for at least 1-2 hours longer in order to keep up with my workload. However, I am not being compensated. How should I handle this situation?"
This is not an easy question, and generally you have three choices, none of which are prefect but they are to be considered:
1. You put your employer on formal notice of having to work overtime and then you file a claim with DLSE for unpaid overtime. The obvious risk is that the employer will retaliate and fire you for filing that claim. Even though this would be illegal, your employer can still choose to terminate you and then deal with the legal consequences of that termination later.
2. You comply with your employer's instructions not to work overtime and leave after 8 hours of work, no matter how far behind you are on your work on that day. The risk here, of course, is being disciplined and fired for insufficient performance. Arguing that you weren't given an opportunity and enough time to finish work will not make this type of termination illegal, if you are an at will employee, because the employee is entitle to their subjective view and expectations of how they want their employees to perform.
3. You tolerate the situation for the time being and/or complaining to HR or higher management about the issue, and you ask them for help with your schedule and compensation. Again, there is a retaliation risk here, but it's probably lower than going straight to filing a wage claim with DLSE.
If you are facing this type of situation, you should consult with an experienced employment attorney to discuss which legal options is best of you, and whether there are other (creative) ways of handling it.
The banking industry is known for some of the highest pressure to perform and sell products and services. This pressure is also a common reason that mid level managers or even top level managers retaliate against employees who take time off for medical leave or disability leave.
Consider a loan officer, who must close a certain amount of loans every quarter. When he is going on FMLA or some other type of protected medical leave or disability leave after being diagnosed with some type of chronic condition, his absence will obviously affect his sales and the overall sales of his department. His manager will be worried about his own numbers and how his department will look to his superiors. This type of situation is fertile grounds for retaliation. Moreover, if the employer suspects, based on the diagnosis, that the employee will need leave again in the future or that his health issues will be ongoing and will require some type of disability accommodation, the incentive to get rid of that employee will be even greater.
In this type of situation, the employer-bank will try to come up with all kinds of bogus reasons for terminating an employee -from making it look like a lay-off / restructuring to issues a PIP to that employee that will eventually culminate and firing for questionable performance issues.
In this type of cases, one e-mail showing some type of animosity toward an employee's medical leave or his absence or one witness who overheard this type of conversation can make a difference between having a strong case or a weak case/ no case. Your attorney should talk to as many witnesses possible, and supboena e-mails from every decision maker during the relevant period of time that might shed light on whether your medical leave played part in being fired.
California FEHA (Fair Employment and Housing Act) permits an employer to require a medical or psychological examination of an employee, also known as fitness for duty examination if it can show that the examination is "job related and consistent with business necessity". This is one of the ways that an employer can assess whether an employee can perform his job in a way that wouldn't pose danger to himself or others. Further, if an employee has or may have a disability, a fitness for duty exam may help the employer determine whether that employee needs an accommodation to his disability, and what kind of accommodation can be effective, if the disability and the resulting limitations are not obvious.
A fitness for duty examination is "job related" if it is "tailored to assess the employee's ability to carry out the essential functions of the job or to determine whether the employee poses a danger to himself or others due to his disability. There is a "business necessity" for a fitness for duty examination if "the need for the disability inquiry or medical examination is vital to the business." (Cal. Code Regs., title 2, section 11065(b)).
For example, in a situation where a professional driver passes out while driving or reports feeling dizzy, the employer will definitely have the right to send that employee to undergo fitness for duty examination in order to determine whether it is safe for him to continue driving, and what, if any, measures can and should be taken to minimize the risk of accident due to that employee's physical condition.
Generally, unless fitness for duty examination appears to be unreasonably invasive, it is in the employee's best interest to comply and undergo such an examination in order to help the employer to do what is necessary in order to accommodate that employee's disability or medical condition as required by ADA / FEHA or FMLA/CFRA.