Can an Employee Be Terminated for Poor Performance If They Never Received a Performance Review?

Nov 22 2023

Josh Goodbaum: Hi, Amanda.

Amanda DeMatteis: Hi, Josh. What are we gonna talk about today?

Goodbaum: I want to talk about a new client who came to me the other day. She came in, and she said, “I just got terminated. I’ve been at my job for over 10 years. I thought I was doing great. I never got any negative feedback. I never got any warnings. I never got any discipline. But it’s kind of a small employer; they don’t do regular performance reviews. And so I thought I was doing fine. But one day they come to me and say, ‘Your performance is not good enough, and so we’ve decided to let you go and move in a different direction.’” What should I tell that woman?

DeMatteis: Well, number one, I’m sorry that you find yourself in this position, right? This is hard. It’s really difficult to lose a job, especially after a period of time as long as this potential client was employed there.

There’s a couple of key takeaways that I think you need to tell this potential client in Connecticut about what her rights are and what she’s been through.

Number one: There’s no law that requires your employer to do performance evaluations. We hear that a lot of companies do annual performance evaluations; sometimes there’s mid-year performance evaluations as well. That’s all employer-specific, right? They could have a policy to do them; they could have a policy not to do them — there’s no law that requires them to.

There’s other ways, though, that we could look at whether or not a person is performing well at work. Have you been promoted? If you’ve been promoted, there’s an inference there that you’ve been doing OK at your job, right? You’ve been doing something right; therefore you’ve gotten promoted. Have you received bonuses? Have you received raises? Kind of the same theory there. Maybe if you’ve received a bonus or a raise, we can prove that, yeah, this person really was performing at work.

But remember, if you’re an employee at will, even if we can truly show, yes, this woman was performing at work, if your employer wants to terminate you for what they can perceive as being a lack of performance or any other reason at all, they’re well within their rights to do that. Unless, of course, their selection of you for termination is based, at least in part in most circumstances, on your membership in a protected class or your participation in some other protected activity.

So, some key takeaways.

Number one: Performance reviews are not required legally in Connecticut.

Number two: There are other ways that we can look at your performance and draw inferences as to whether or not you were performing.

Number three: Is there really something else motivating this decision that your employer made? Because if we can show that there is, and then we can also show that, “Hey, nobody ever told me I wasn’t performing. I got raises. I got promoted. I got all these positive accolades,” and we can poke some holes in the employer’s reason for termination and really show it wasn’t about performance, it’s because I’m black or white or pregnant or disabled or I just took a medical leave, etc., then we may have something to talk about and there may, in fact, be some liability.

Goodbaum: Really interesting thought process. Thanks for sharing it, Amanda, and thank you all for watching.

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josh goodbaum speaking on being terminated for poor performance after never having a performance review

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