New York employment law does not require that employers complete performance reviews for their employees. New York follows the doctrine of at-will employment.
This means that employers may terminate an employee’s employment with or without justification at any time. The only limitation is that an employer cannot fire an employee for a reason that is illegal under New York and federal law. So, an employer may not fire an employee for reasons that are discriminatory or that constitute retaliation.
An employee may also end their employment at will, i.e. at any time and for any reason. Usually, an employee in good standing gives their employer notice if they plan to leave in order to maintain good relations, but it is not legally required.
The law in New York allows businesses broad discretion in managing their workforce. Employers are also not legally required to offer a performance improvement plan before firing an employee if they have a poor performance review. Apparently, performance improvement plans are popular with New York employers, but they are not required by New York law. A New York lawyer would be able to explain New York employment law in more detail.
An employer’s policies or past practices may suggest that terminations will only occur after warnings with opportunities to improve. If this is the case, then terminating employment without going through these steps may constitute wrongful termination in New York.
There are some additional limitations on at-will employment. An employer may adopt policies and practices that give rise to implied contractual obligations. If they do, they may not fire their employees in violation of the provision of their implied contract.
There are also public policy considerations that limit at-will termination of employment in some circumstances, e.g., if firings constitute discrimination against protected classes.
What Makes Up a Work Performance Review?
A work performance review may be referred to by different terms depending on the employer. How a work performance review proceeds also depends on the employer. The procedure is not prescribed by New York or federal law.
There are a number of different models, but the basic concept is that a representative of an individual’s employer engages with the individual in reviewing their performance in their job and characterizing it in some way as acceptable or not. Employers usually conduct performance reviews once a year.
An employer should inform an employee about the process that is used and the performance standards that apply for someone in the employee’s position. The employer should inform the employee what role, if any, they should play in their performance review.
How Can I Prepare for a Work Performance Review in New York?
If an individual does not know how a performance review is going to proceed or the standards by which their performance is evaluated, they want to ask their supervisor as well as someone in HR for information about both – the process and the standards.
This is something they want to do before the time for a work performance review arrives. An employee needs to know the metrics by which their performance will be judged starting on the first day of their job.
An employee wants to learn about the standards they must meet as a first step in preparing for a work performance review in New York. An employee then wants to review their own performance. They want to assess how well they think they have met the standards.
They want to produce objective information to support their assessment of themselves, presumably that they have met standards. They want to be able to relate how they have contributed to their employer and its mission.
If they have trouble fulfilling certain expectations of their job, they want to seek out training opportunities and other ways to address their deficiencies. If they can show that they were struggling in one domain but sought ways to address this successfully and have shown improvement, that would be a valuable point to make in a performance review.
An individual should seek input from colleagues and supervisors about their performance on an ongoing basis. In the review, an employee wants to be an active participant in the discussion. They should show that they are receptive to feedback and suggestions for improvement.
Is a Performance Review the Same as a Grievance?
A performance review and a grievance are not the same thing. A grievance is a formal complaint about an employer’s violation of contract terms, unsafe workplace conditions, or some policy that is unacceptable to its workforce. The term “grievance” is usually used in the context of a unionized workplace.
Usually employees who are members of a labor union file grievances when their employer has negatively affected them by violating the collective bargaining agreement that the union has with the employer. Both individuals and groups within a union may file a grievance. Usually the collective bargaining agreement spells out a process for the resolution of grievances, however grievance lawsuits are possible.
And the term “grievance” may be used in workplaces that are not unionized to refer to employee complaints about the terms and conditions of their employment, i.e., unsafe conditions that threaten workers’ health and safety.
Can I Sue if My Supervisor Gave Me a Good Review but Fired Me?
A supervisor might give an employee a good review but the employer would fire them just the same. This could happen for a number of valid reasons. For example, despite the best efforts of its staff, a company’s prospects for growth might be harmed by general economic circumstances. The company might be forced to downsize, i.e., reduce the number of personnel it employs. People who have performed well in their jobs may have to be fired.
Or a company might lose one very important contract on which a large percentage of its business depends. The loss of that contract might force the company to fire the personnel who serviced that contract.
Other circumstances can force a company to fire perfectly good employees. That is why employment is at-will; employers must have the freedom to downsize when circumstances require it.
Again, what is not legal is for an employer to fire an employee for reasons that violate employment discrimination law or that constitute retaliation against the employee for activity they engaged in that is protected, e.g., whistleblowing.
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What Is Performance Evaluation Discrimination?
An individual who believes they have been the victim of discrimination in their performance evaluation should arrange a legal consultation. They want to meet with a lawyer who is knowledgeable about unfair performance review law. The individual can present the facts and the data about how they and their co-workers have been evaluated by their employer and what the results were.
The lawyer would review the information to form an opinion about how the evaluation system is working. Or, a lawyer might consult an expert to review the information and provide an opinion.
It might be necessary to employ the services of an expert to analyze the data to identify evidence of discrimination. The expert would need to access the exact methods that the employer uses in conducting their reviews. They may need to have the results for a whole division, department, or even for the company’s entire staff. For this reason, an individual’s lawyer might recommend filing a complaint with a state or federal agency, e.g., the EEOC.
Any performance evaluation system can be misused to discriminate against disfavored employees or used subjectively to make judgements about performance that are not valid and do not justify negative employment consequences, e.g., firing.
In addition, if an employer delivers a bad review to an employee that is patently mistaken and unfair because it is based on false information and/or statements about the employee that are defamatory, then an employee may be the victim of a false performance review. In that case, the employee wants to talk to a lawyer about what steps they might take.
Can My Former Employer Mention My Bad References During a Reference Check?
In a reference check, a prospective employer contacts a person’s previous employer to request a reference about a job applicant. Usually, a prospective employer reaches out to former employers and others whose names an applicant has provided them for such purposes as confirming the applicant’s employment history, job performance, work habits, and general suitability for the position they have.
A prospective employer might ask a prior employer such questions as the following:
- The dates when the applicant was employed at their previous job
- What their job title was and their responsibilities
- How well the applicant performed their job
- What their reasons were for leaving the job and whether was it voluntary or a firing
- Whether the prior employer would hire the applicant again.
There is no legal reason for which a prospective employer cannot ask these questions. They can ask anything except questions concerning legally protected characteristics such as the applicant’s race, religion, gender, pregnancy status, national origin, or age.
A previous employer can provide feedback about a previous employee’s job performance, attendance, and attitude. New York does not have a specific statute regulating what employers can disclose during reference checks, but the law of defamation applies. An employer could be liable if they provide false information that is defamatory and harms a former employee’s reputation.
If an individual is concerned about what a previous employer might say, they can ask a prospective employer not to contact a previous employer and offer alternative references. However, the applicant would have to be prepared to offer a good explanation for their request.
If someone is employed when they are conducting their job search, they can ask the potential employer not to contact their current employer. Most hiring managers understand that a current employer may be unaware of a current employee’s plans to move on.
Legally, there is no requirement for employers to obtain an applicant’s permission before contacting previous employers, but they usually do. Job applicants are free to ask about a company’s reference-checking process upfront so there are no surprises.
Additional Considerations Regarding References
Some employers have policies in place that limit the type of information they share. They may refuse to provide references or offer basic details such as employment dates. This is often to avoid the risk of legal claims from former employees. They can legally do this.
The fact is that a prospective employer can ask a prior employer for a reference and if they receive a bad one, it can prevent the applicant from being offered the job. However, some companies take multiple references into account and may give an applicant an opportunity to explain any concerns that come up.
Of course, an individual who is looking for a new job wants to choose their references carefully. They should ask a potential reference what they would say if asked for a reference. They would not list as a reference a past employer who would give them a negative reference. They would let those they list know that they might be asked for a reference.
It is important to note that providing false information about a past employer in a reference check is unethical and can have serious consequences. If an employer discovers that a person lied about a reference, they would have the right to withdraw a job offer or fire a person if they had been hired. It can damage an individual’s professional reputation which would make it harder for them to land a job in the future.
Can I Sue My Employer for Giving Me a Bad Review in New York?
As noted above, the law of defamation in New York applies to job references. An employer could be liable if they provide false information that is defamatory and harms a former employee’s reputation.
However, if they fired a former employee, they may report this if asked for a reference and it is possible that it would make it difficult for an individual to land a new job.
Should I Hire an Employment Lawyer in New York?
If you think you have been fired for a reason that is not valid, you want to talk to a wrongful termination lawyer in New York. LegalMatch.com can set you up for a consultation with a lawyer who knows New York employment law.
Your lawyer will review the facts of your situation and can tell you if your employer had the right to fire you or whether it may have been done for a reason that is not tolerated by New York law.
