Q: Can a company install a negative annual performance review for former employee after employee already left company?
I am an engineer, 57 years old, worked for a subsidiary of a China company in California for 1 year and 8 months. I was suddenly laid off. Company told me that it is a workforce reduction due to position elimination. Then we started discussing about the severance.
At 02/22, I met them online. I asked them to give reference in moral support and pay my 2023 annual bonus as severance. They turned down both. HR manager said: your 2023 annual performance review is unsatisfied, you don't have bonus. I was surprised and asked them: "Why did you say I have a negative performance review? I don't have 2023 year review yet at all. My supervisor is here, he is the witness, during my entire employment, I never received any criticism, never heard any negative feedback. My 2022 performance review was excellent". Both HR manager and my supervisor just kept silence.
Here is my question: Can the company install a negative performance review after I left company?
A:
In California, employment law generally favors at-will employment, meaning that both the employer and the employee have the freedom to terminate the employment relationship at any time, for any reason, as long as the reason is not illegal. However, the situation you described raises questions about the fairness and legality of retroactively applying a negative performance review after an employee has left the company, especially in the context of severance negotiations.
Legally, there isn't a clear prohibition against an employer providing a negative performance review after an employee has left, particularly if the review process was ongoing or not completed at the time of departure. However, this practice could be problematic if it is used to unjustly deny severance or other earned benefits, or if it amounts to defamation or violates specific terms of an employment contract or agreement regarding performance evaluations and severance.
If you believe that the negative review was unjustified, not based on factual performance metrics, or used as a pretext to deny severance or other benefits, it may be wise to discuss the situation with legal counsel. An attorney can help you understand your rights and may be able to negotiate a more favorable severance package or address any potential legal claims you might have against the company. It's important to gather all relevant documentation, including any previous performance reviews, correspondence about the severance, and your employment contract, to support your case.
A:
There is nothing unlawful about an employer placing a negative performance review or other kind of negative paperwork into your file after you have left the company. The only way something like that would be potentially unlawful is if it was untruthful and it was motivated by your membership in a protected class of people or because you engaged in some kind of legally protected conduct.
Good luck to you.
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.
