Federal judge Prentice Marshall once said that next to going to jail, the worst thing that could happen to someone is losing a job. In an economic downturn, as the nation has been facing for some time, the need for prudence, patience, and perseverance in preserving job security is highlighted. Long-term employees who draw higher salaries and accrue greater benefits - but who can be replaced by two new employees for the cost the employer is currently bearing - are frequently singled out through negative evaluations, letters of warnings, suspensions, probations or performance improvement plans. Employees need to be aware that some employers prefer to avoid severance payments in separation situations by targeting and tarnishing employees as a prelude to discharge without severance. This helps to keep company coffers full by lightening job rosters as inexpensively as possible. By applying the practices that I outline in this article, you may be able to restore luster to clients unfairly tarnished on the job and help keep them employed.
Employees Should Not Ignore Written Criticism Of Their Job Performance.
An employee should respond in writing, in reasoned and not overemotional ways, to all substantial criticism that an employer puts in writing if the employee wishes to avoid the risk of joining the ranks of the unemployed. The shock of being targeted and tarnished can be great. Denial of trouble ahead on the job is too often an employee’s response. While in denial, an employee’s time to resist can run out and employment or income maintenance opportunities can be lost. Because of the shock involved an employee needs help to properly rebut the employer’s position con-cerning the employee. Skilled employment lawyers can provide much needed assistance.
Many people, however, have trouble investing in themselves through hiring lawyers even though their economic well-being may depend on it. Nevertheless, paying for legal services when the first shoe drops and maneuvering room is still available is much better than putting up cash when the proverbial pink slip flutters down on top of the other shoe. If an employee responds early and appropriately, the employer may relent or, more likely, look for someone else to fire who is an easier target.
The bottom line for the employee is in maintaining an income, whether from the present job or from another source. In assisting an employee to prepare a response, the attorney should consider possible employer motivations and weigh employee options. The employer’s impetus to discipline an employee may include the following: a perception that the employee is ill, is incompetent, or has engaged in misconduct; supervisory grudges against an employee; obsolete or illegal employment policies; or simply cost savings.
An unwary employee and an unwary attorney may not be aware that many employers have short or long-term disability benefits available for ill employees. Although the qualifications standards are strict, Social Security disability benefits is another possible way to maintain income. The employer’s response to the rebuttal letter will guide you in counseling the client concerning next steps.
Employees Should Deliver Effective Rebuttal Letters Written With Your Help.
Initially, I favor preparing a letter in the employee’s name, creating a heading using the employee’s name, home address, and telephone number. The letter is to be written in such a way that a judge or other decision maker will clearly understand the issues. In other words, this is not simply an in-house document. It is not an office memorandum. It is definitely not in an email communication or correspondence to be sent in an email format. Those formats are too informal.
The employer’s personnel people may surmise a lawyer wrote the rebuttal, but at the outset stimulating conversation between the employee and the direct superior is usually more advantageous than the confrontational approach signaled by an attorney’s letter. The letters that I draft for clients range from five to twenty pages, depending on circumstances, such as the wealth of facts available to dissect and reassemble in a meaningful format. I ask clients to obtain a copy of their personnel and medical files, including Employee Assistance Program files, from the employer before we begin our work together.
I try to draft a letter responding to an adverse employer action that delivers key messages to the employer. Their position in a letter may vary:
1. I am a good employee. The employee should articulate that he wants to be the best possible employee and he wants to be promptly told of any deficiencies in performance in order to correct his conduct to conform to the legitimate expectations of the employer, but for the reasons stated in their letter, the accusations are incorrect.
2. I love my job and it loves me. The employee should emphasize the importance of the job in her life, especially if she is a long-term employee, and she should show her importance on the job by listing all her promotions, commendations, and even regular pay increases. Past discipline is explained away if possible.
3. I have explicit answers to criticism. The written response shall contain no generalizations. Factually accurate and exact rebuttals of each employer allegation are essential, but no pejorative language should be used [let the facts should speak for themselves, implying unreasonable employer discipline]. If the employee has a medical condition or disability that has likely brought about the discipline, it should be addressed factually. A referral to a doctor or psychiatrist for a diagnosis and prognosis should be obtained and used in drafting the rebuttal, if indicated.
4. I write so that a judge can read what I have to say with ease. The written response shall contain no acronyms until after the acronym has been spelled out. Even then, avoid acronyms if at all possible. A combination of letters without a known resting place in an antecedent asks too much of the reader (remember it is not solely an in-house document).
5. I am being wronged. The letter should interpret how the employee sees the facts in light of common notions of fair play on the job. Also, this is the place to allege that illegal discrimination may be involved (if it truly is) and name it as sex, sexual harassment, race, age, et cetera.
6. Here I stand; I can do no other. The employee should give the employer notice how the employee plans to address the unfairness involved without directly threatening a lawsuit. The letter may ask for use of the employer’s grievance, appeal, or open door policies, or the letter may explain the ineffectiveness of such a policy if it has been attempted before without a positive result. The letter may suggest an alternative procedure to find relief. At a minimum, the letter should convey that without relief the writer will be placed in a position to take further action.
7. My response cannot be ignored. The employee should insist that his response should be placed in his personnel file until the objectionable employer material is retracted.
8. I will obey unfair management directives. While waiting for retraction to happen, the employee should advise that she will give wholehearted commitment to complying with the employer’s corrective plan for her.
9. Here is what I want. The employee should state the specific relief sought, e.g., withdrawal of a letter of warning or of a performance improvement plan, and the letter should ask for a prompt written response to the employee’s protest.
Employees Should Back Up Their Letters with Supporting Documents.
The letter should contain an appendix of all relevant documents. If more than five documents are included, tabs are helpful. If the letter and attachments are thick enough, I have them spiral bound with a clear plastic front and black back.
Employees Should Personally Deliver the Response.
The employee should deliver the response personally to the author of the adverse employment action, unless the adverse action directs otherwise.
Employees Should Be Cautious Before Signing Settlement Agreements.
Settlement of employment disputes through negotiation or mediation should be encouraged. If the dispute results in a lawsuit, however, the employee should plan on seeking the best severance agreement and on saying goodbye to that particular job. If settlement of an employment dispute is reached through a written document, it may contain language that requires clarification and counseling by a lawyer. I have found, for instance, that a "last chance agreement" as a way to avoid a discharge is usually worthless because these agreements generally contain a waiver of any claims to contest future illegal treatment. In general, it is better to stand and fight now than to sign away your rights to do so later. The point here is that the employee really needs a lawyer.
These nine employee tidings in a response letter may help the employee achieve a longevity usually reserved for cats. The lawyer should disabuse the client, however, of believing that the employer will agree with the response. Respect, yes; agreement, no.
Typical results for an employee through resisting targeting include: a better definition of the job or work the employee is good at doing; employer respect coupled with the employer’s decision to find a different, more vulnerable employee to target; an active job search by the employee; and disability leave or retirement.
In the Chicago area, a reference to an employment lawyer can be obtained several ways. One source is the Chicago Bar Association (CBA) Lawyer Referral Service (312-554-2001 or website: www. chicagobar.org [click on Lawyer Referral Service] ). A second source is the National Employment Lawyers Association (415-296-7629 or website: www.nela-illinois.org). A third source can be found at www.workplacefairness.org. All the attorneys who participate in the CBA’s program are screened by the Lawyer Referral Service Committee for competency and experience. The other organizations do not screen attorneys.
A threatened job is not pleasant, but consider the wisdom of Swiss psychiatrist Carl Jung who said that the right way to wholeness in life is through fateful detours and wrong turnings. Once the employee’s job lands, not in a field of dreams, but in a junk yard, the right turn is to find a good lawyer and fight for fairness on the job. The odds are better than most people think. Tough-mindedness can triumph over tribulation and termination.
Michael F. Lefkow is a self-employed Chicago lawyer concentrating in the area of employment law. He is a former Supervisory Trial Attorney for the U.S. Equal Employment Opportunity Commission and a former Assistant Regional Labor Counsel for the U.S. Postal Service. He served as Chairman of the Chicago Bar Association Lawyer Referral Service Committee during 2001-2002. He is also a member of the National Employment Lawyers Association.