We get calls from employees in Sacramento every day with their concerns about receiving unfair write-ups, warnings even performance improvement plans. And the question is always the same – is there anything that can be legally done to make the employer stop issue unfair write ups and leave the employee alone so to speak?
Obviously no attorney or judge can physically make the employer stop treating you unfairly and writing you up. The employer is entitled to his subjective view and evaluation of your performance as an at-will employee , however unfair you might think that evaluation is.
Generally, unfair write-ups have little or no legal relevance. However, in some situations, bad / false reviews or warnings can be evidence that there is more to the story, and that the real reason that the employer is writing you up is discriminatory or retaliatory. Consider a common situation – an employee with a history of good performance, files a workers comp claim for his back injury after working for that employer for 10 years, and suffering on-the-job injury while lifting a heavy load. A few weeks to a few months later, he receives a warning or a 30-90 day PIP , even though there was no mention of performance issues prior to that. A month later, the employee is terminated before his PIP even expired. In this type of situation, the fact that the employer was happy with the employee’s performance prior to the injury and workers comp claim filing, but became unhappy shortly after is one type of evidence that, in conjunction with other facts can be used to prove retaliation and wrongful termination.
The timing in these types of cases is critical. Therefore, creating a brief but specific chronology of events can be very useful to your attorney’s evaluation of your potential case. Here is a sample chronological timeline that any employee subject to retaliation can use:
January 2001 – hired as Department Nurse
March 18, 2008 – filed a workers comp claim.
March 20, 2008 – approved for FMLA leave for 6 weeks.
May 1, 2008 – returning to work with restrictions.
May 11, 2008 – written up for insufficient performance.
May 20, 2008 – written up for “not being a team player”.
May 30, 2008 – terminated for stealing.
Received only one verbal warning for being later prior to filing a workers comp claim, and that warning was issued over 4 years earlier.
The chronology of events leading to termination is rarely this clear and helpful, but it allows for an effective early evaluation of how strong your case is and what the employer’s anticipated arguments will be in defending the legitimacy of discipline and termination.