Workplace Law’s biggest misconceptions

Date: 2010
Author: Daniel A. Lublin
Publication: Metro

Poor performance is not cause for dismissal

Criticism may not be agreeable, but it is necessary. – Winston Churchill
This is as true at work as it is in life, except that in workplace law there is always an exception. Here is a sampling of some of the questions readers of this column frequently ask and the answers I often provide.
Performance appraisals. When assessing merit, your appraisals matter. When assessing severance, they are generally irrelevant. This is because poor performance is rarely cause for dismissal. Similarly, there is no such concept as “near cause”, which means there should be no correlation between your level of performance and the quantum of severance you will ultimately receive. Therefore, if you are fired and it relates to performance, you should receive the same severance as if it did not.
Letters of reference. Employees often think they are entitled to a reference. They are mistaken. There is no right to a letter of reference, no matter how long or meritorious your service.
Restrictive covenants. Despite agreeing to non-compete agreements, very few employees are later held to them, no matter how appropriately the clause was drafted. Non-solicitation clauses, however, are a different story. Courts have consistently upheld agreements not to solicit former clients or employees after departure, despite how important you may or may not have been.
Employment contracts. If there is a written contract, it has to meet a number of tests. The employee must, at least, be given the opportunity to negotiate or those terms that are punitive may not be enforced later on. This rule also applies during the course of employment, except that something of greater value must also be offered, such as a raise or a promotion. Otherwise, the courts have reasoned, an employer could unilaterally impose new terms, and an employee would be left without the leverage to negotiate or refuse.
Resignations. If you resign with advance notice and your employer asks you to immediately leave, are you entitled to pay for the remaining period of notice? Unless there is a contract that says otherwise, generally you are.
Independent contractor agreements. It usually will not matter that workers have signed agreements confirming they are independent from their employers. When this characterization is challenged, sometimes many years later, courts are apt to find these workers were truly employees. No surprise there. Many times the contract represented little else than a “label”. What matters is how the parties actually behaved.