Speaker 1: 0:20

Hey, it's Mark and welcome back to another episode. Today's topic is performance defamation and truth decay in the American workplace. Maybe the title signifies what I'm about to talk about. Evaluations by employers in the American workplace is that they have become a frequent and persistent source of destructive disinformation. As a practicing employment lawyer, it has become increasingly clear that employers have become entirely comfortable with drumming up false claims of performance deficiencies against high-performing employees to justify otherwise unjustifiable or illegal terminations. When employers decide to terminate an employee, whether it is for a legal or illegal reason, they simply begin to make up lies about the employee's performance and then quote document these lies to support a quote case for termination, and then quote document these lies to support a quote case for termination. This practice is promulgated by high-priced employment defense lawyers who I know many of them who advise their corporate clients that to help avoid civil liability for unlawful or retaliatory terminations, they must create a history of poor performance or misconduct by the employee and quote document that history so it can be used as a defense to claims of discrimination, harassment, retaliation or wrongful termination. Never mind whether the employee is actually committing misconduct or performing poorly. As long as the documentation says there is poor performance the employers are quote covered. The devastating effects of this all-too-common practice cannot be overstated.

Speaker 1: 2:14

For most employed Americans, our work is the center of our public existence. Work is fundamental to our identity. Work is essential and integral to our meaningful and productive human life. Human beings derive fundamental concepts of their personality and self-worth from their work. Humans do not only work to live. They work to gain an identity and to contribute to the collective good. Our work is tied up with our aspirations, our hopes for the future, our family's well-being. No part of our economic existence is more significant when an employer unfairly and falsely claims that our work, into which we have poured so much of our identity, is substandard or insufficient. The negative effects on one's psyche or psychic well-being can be significant and debilitating. When one puts maximum effort, dedication and the bulk of one's time on a 40-hour workweek into a job, only to be told that they must accept a made-up lie that their excellent work is actually unsatisfactory by some often subjective standard, which is always the case by the way, that person loses more than just a job. They lose their self-esteem and their belief in the core concept of the American dream that hard work pays off.

Speaker 1: 3:39

My daily experience with this insidious trend towards what I call quote performance defamation. It's a real thing, is a system of a larger trend in our society. Over the past several decades, our national discourse has become subject to a condition called quote truth decay and, by the way, I'm not dropping quotes all the time, it's just that I'm reading from quotes. Truth decay is defined as a set of emerging and related trends characterized by increasing disagreement about the facts and analytical interpretations of facts and data, a blurring of the line between opinion and fact and lowered trust in formally respected sources of factual information. One can think in this instance, newspapers some of the most well-regarded newspapers have fallen prey to this, in my opinion. In short, facts have become a matter of personal opinion in this country.

Speaker 1: 4:38

Performance defamation is a perfect example of truth decay, as it operates on the principle that as soon as an employer's opinion of an employee changes, the facts about the performance instantly change as well. I cannot count the number of times I've seen employees with years of long histories of excellent performance reviews, accolades and awards suddenly deemed quote here's the quote again incompetent. Or quote poor performers right after they made a complaint of harassment, or when a new manager arrives who does not like them or prefers another employee for some unknown reason. I'll add even one more to that the lengthy history of someone's employment, year and year after you know, several reviews every year and increase in salary and bonus. All of a sudden, within a matter of months, they're being put on a PIP or given a negative review, telltale sign that something's going on and you need to find an employment lawyer.

Speaker 1: 5:34

The practice of dishonest performance evaluations has become so commonplace that it is difficult to question any more. Objective measures of performance are eschewed in favor of subjective measures of performance, which is a fact. Most employers do use subjective measures and are usually not based on facts. So be careful of that and look for it. Standards are easily altered so that minor infractions or common errors, like typographical errors in draft documents, are suddenly raised to the level of performance errors for the target employee, while the same mistakes or minor errors are ignored for the other employees. Subjective measures of performance, like quote-unquote communication skills based on ordinary interactions, are elevated to performance criticisms. Indeed, if the employer wants to find fault with a particular employee, it can do so whether there is a legitimate cause or not. These false performance evaluation practices are so widespread they're not even questioned as ethical or legal anymore. In my experience, most working people fundamentally believe that it is wrong or should be illegal for an employer to simply concoct lies about their performance and use those lies to affect determination of employment. Most of my clients are shocked that there is no law against the obscene practice. There is not. In fact, our courts have gone to great lengths to shield employers of course they have From liability or this sort of defamation.

Speaker 1: 7:04

There is the intra-corporate privilege doctrine that allows employers to freely commit defamation against employees in the course of managing them. Many jurisdictions, including Connecticut, have such a privilege for corporate communications A very famous case, actually. I was in law school and I actually read this case. I'll tell you how old I am. It's called Tarosian versus Beringer-Engelheim Pharmaceuticals One of my favorite employers, by the way. You know you're out there, bippy, I call you which states quote communications between managers regarding the review of an employee's job performance and the preparation of documents regarding an employee's termination are protected by a qualified privilege. Such communications and documents are necessary to effectuate the interests of the employer in efficiently managing its business end. Quote this doctrine specifically protects employers from performance defamation and allows them to discredit and denigrate an employee's performance based only on subjective or even false criteria it chooses. Our courts have long protected employers' rights to manage their employees over the employees' right to fair and honest treatment in the workplace. Thus, the law permits unfettered performance defamation against employees who have little recourse to investigate and to prove their own good performance.

Speaker 1: 8:29

Cnn, the TV show, reported on a very recent example of this occurring in the federal workplace. As the Trump administration is culling government employees in mass numbers numbers, the Trump administration is claiming that it is carefully terminating only low-performing and probationary employees, when in fact, many of the terminated workers have had recent promotions or excellent performance reviews. This may be surprising to many, but this type of mass performance gaslighting is the norm in corporate America. Poor performance simply means your employer wants you gone, while CNN calls it quote indiscriminate madness, it is nothing new. It is certainly not surprising to employment lawyers like myself. It is nothing new. It is certainly not surprising to employment lawyers like myself. The same madness is taking place among private sector employers as well as in state and local governments. The current administration simply is employing a well-used playbook to rid itself of employees.

Speaker 1: 9:32

One of the most deceptive tools in the employer's performance defamation arsenal is the Performance Improvement Plan, or PIP, and you've heard me talk about that damn thing over and over and over. The PIP process is intended to make the employer appear as if it's giving a poor-performing employee notice of their substandard performance and a structured, measured opportunity to improve that poor performance and thereby avoid termination. Sounds fair, right? Well, it's not. Nothing can be further from the truth. As an experienced employment attorney who advises employees through the PIP process on a daily basis, I can tell you that the PIP means you're already set to be terminated. I call it the writing on the wall and they basically want you to quit. By the way, just so it's cheaper than if you just quit because they don't have to pay unemployment insurance benefits. Once you're on a PIP, the employer will not let you improve and save your employment, regardless of what you do. They are just documenting your poor performance, never mind that your performance may be good or even excellent. The PIP is a complete sham in almost every case, as the employer inevitably sets either unreachable and unrealistic performance goals or simply makes the improvement criteria so subjective that any performance can be characterized as substandard. The PIP is truth decay in action. I like that phrase truth decay. It's got a lot of bite to it.

Speaker 1: 10:58

While most working Americans believe they are entitled to fair treatment at work, to honest evaluation of their performance and that they should be protected from arbitrary loss of their job, the law does not provide for any of those things things as an attorney, who often has to answer an employee's desperate question quote how can they do this? To me, I can say that the law is far from reflecting our country's shared values and beliefs about workplace dignity, honest treatment and a fair conduct. Our legislatures and courts should be looking at comprehensive review and expansion of the basic rights of employees to fair and equitable treatment, but they're not doing that yet. Protecting employees from performance defamation and changing the flawed principles of quote employment at will would be a great start, and you've heard me talk about that as well. Will would be a great start, and you've heard me talk about that as well. While the law tells employers that they can do whatever they want to employees, no matter how dishonest, the American people expect better we should start demanding it.

Speaker 1: 12:11

This episode was written by Chris Avacali, an attorney in our office. It was taken from a blog post we put out recently by the same title. Hope you enjoyed the episode and I'm looking forward to sharing more with you. Have a great day.