Josh Goodbaum: Hi, Amanda.
Amanda DeMatteis: Hi, Josh. What are we going to talk about today?
Goodbaum: I want to talk about an employee who comes to you with a workplace problem. They say, “I’m being disciplined. I’m being warned. I’m getting put on a performance improvement plan. They say my performance isn’t good enough, but it is. I’ve been here for 10 years. My performance is exactly the same as it has been. The expectations haven’t changed. What I think is happening is that I’m being scapegoated by my boss, by my boss’s boss; they’re looking for somebody to blame, but they’re just wrong. My performance is good. What can I do to protect my job?”
DeMatteis: It’s a great question. Being blamed at work for something wrong that you didn’t do is one of the more frustrating factual scenarios that presents itself in our law firm. Because if that really is the motivation — maybe you are a scapegoat, maybe your employer just got it wrong, maybe your boss doesn’t know how to manage their business and they’re doing a really poor job of leadership — those things aren’t illegal. They’re not violations of any state or federal laws that protect employees at work. So, if that really is the motivation, the hard truth that we need to relay is there’s very likely nothing we can do to help.
But the inquiry needs to go a little bit further than that, and we need to try to get at what really is motivating this performance management. In particular, are people that are different from you being treated differently? For instance, are you seeing that white women are being performance-managed in a way that other women are not? Are you seeing men that are being treated better or pregnant women being treated worse? You get the point. If we’re able to differentiate you and your classification in one of our protected classes under state and federal law to the way others are being performance managed, then we really might have something to talk about.
Another thing we always look for, Josh, is have the actors changed? Has your boss recently changed? Has your boss’s boss recently changed? What types of patterns are they displaying in the workplace, and can we draw some inferences based on that? If we can, then there might be some type of action or recourse that we can take.
So, as with so much of employment law, Josh, it’s really fact-specific. And sometimes we need to pull back the layers of the onion a little bit to see if we can get an idea of what the real motivation is, and only then will we know if there’s something that we as employment lawyers can do if you feel as though you are being performance-managed at work, and it’s just not really accurate.
Goodbaum: Really good advice, Amanda. Thank you. Thank you all for watching. We’ll see you next time.