I often hear from employees who know that they are on the “hot seat” at work. The story is always the same even though the characters and settings may differ.
Usually, the employee has seen his long-time supervisor replaced by a new supervisor who is coming in to put his own imprint on the job. That usually means adjusting expectations, and looking at performance of employees with a more critical eye. Inevitably, one or two employees are singled out and continued employment becomes questionable.
Frequently the employees who come to see me are singled out because of their age, or their disability status. The new boss assumes that the age of the employee or the disability status renders the employee unable to perform up to the supervisor’s expectations.
Soon scrutiny of the employee increases and documentation of performance issues starts to occur. And then, before any action is taken, the employee may be put on a performance improvement plan or “PIP.”
A “PIP” is not what it claims to be. It claims to be a plan to help the employee improve performance by setting benchmarks and providing supervisory guidance. In reality, a PIP always creates unattainable benchmarks without any supervisory guidance. It is created as evidence to show that the employer wanted the employee to improve, but in reality it exists to cause the employee to fail so that the employer can fire the employee for not meeting unreachable benchmarks.
Once a PIP is put in place, the handwriting is on the wall. The door has been opened, and the boot is aiming toward the employee’s backside.
Some employees, knowing what is about to occur, become more proactive in order to set the stage for a coming wrongful termination lawsuit.
In a recent case decided in Connecticut federal court last week, the court said that an employee could tape record meetings that his employer held in an attempt to gain evidence in support of his age discrimination case.
The employee had brought the age discrimination claim against his employer while he was still employed. At his deposition, it was discovered that he had surreptitiously recorded multiple meetings while at work. Following the deposition the employer fired him for making the recordings in violation of company policy.
The company then sought an injunction to prohibit the employee from using the recordings for any purpose. The company was concerned that the recordings contained confidential trade secrets. It did not want those trade secrets to be disclosed, and it claimed that the lack of security of those secrets posed a threat of irreparable harm.
The court found that the employee was convincing and believable that he made the recordings in order to support his discrimination case and not in order to steal trade secrets from the company. The company argued that the recordings jeopardized the security of its trade secrets. While the court agreed that the recordings might contain trade secrets, it would not prohibit the employee from using the recordings to support his age discrimination claim.
The case is unlikely to set a precedent in Connecticut because it comes from a trial court, but employers should be wary of harassing or discriminating against employees, because the employee may be able to record incriminating evidence and use it against the employer.