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  1. #1
    Join Date
    Dec 2020
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    4

    Default Performance Below Standard- Performance Improvement Period Matched Covid Lockdown

    My question involves labor and employment law for the state of: NJ

    My position was terminated due to 'performance below standard' in November 2020. I worked for this company for close to 20 years. My area is IT, but last 5 years I formally was on business side of the company (not IT), doing mostly IT job, but specific for business. So it was easy to go to 'work from home' during COVID lockdown.

    I got new manager in mid-2017, and problems started growing from end of 2019. In Feb 2020 I got first letter from the manager, stating examples of my 'performance below standard'. I had three such letters, with periods of about two months each to address the problems of my performance. I got good words from him at the end of August, but working till 1 - 2 am most days of the week in summer got toll on my health, and I 'gave up' in Sept - Oct, letting the performance to 'slip'.

    My argument to the HR that the work was really intense during Feb - Nov, and that performance improvement period matched COVID lockdown and 'work from home' , and I had 5 members of the family 'locked down' with me in two bedroom apartment, making it difficult to focus during work day, got no effect on the decision to terminate.

    Initially after the termination phone call, I was given no severance package, but then trying to prove to HR the termination was baseless, I got an offer of very few months of severance. I have few days to respond to the offer.

    I started consulting attorneys in this area of labor and employment law, in details, only in last two days and will continue doing so.

    The CEO of the company stated on Bloomberg and on Yahoo News that there will be no COVID-19 related layoffs in 2020. I was trying to argue to HR, that even though my case is not directly related, it's been affected indirectly, by not having an office environment, where I would be able to focus on my work. Over the years with the company I only had handful days when I worked from home. Nowadays, my son's school is closed during COVID pandemic and we, parents, decided against kindergarten for younger one, due to, obviously, the virus danger. (yes, most families are 'in same boat' in NJ nowadays).

    I have successful years in the company prior to mid-2017, with good reviews.

    I don't know if I should provide examples of my 'performance' here, but most of the prior managers from same company would not consider those situations as problematic. Also, one other prior-manager-of-mine I consulted with on those letters, told me I'm being framed with nonsense. Still, HR's main argument for termination are these records (managers letters).

    To be honest, the value I provided, and the feedback I got from co-workers, - I'm shocked by the termination event. I was in the middle of several projects, with a couple of them quite important for the business area I was in. It feels like the HR saw the opportunity to get rid of me, say, due to age and years with the company, and they acted.

    I've been told I have two years to start the case in the court. One way or me: me I should wait till more pandemic precedents in this employment law area gets adjudicated in the court system (NJ) and come back when I have better stance.

    I would appreciate your opinion on what I should and can do in my situation ( position termination due to 'performance below standard' ).

  2. #2
    Join Date
    Mar 2012
    Posts
    1,360

    Default Re: Performance Below Standard- Performance Improvement Period Matched Covid Lockdown

    Quote Quoting krylya
    View Post
    what I should and can do in my situation
    For now, file for unemployment, and look for a new job.

    NJ has very generous benefits, and extended benefits have kicked in. Rather than getting your job back, you might be better off just sitting things out, and keeping your family safe.

  3. #3
    Join Date
    Oct 2006
    Posts
    16,474

    Default Re: Performance Below Standard- Performance Improvement Period Matched Covid Lockdown

    Quote Quoting krylya
    View Post
    My question involves labor and employment law for the state of: NJ

    My position was terminated due to 'performance below standard' in November 2020. I worked for this company for close to 20 years. My area is IT, but last 5 years I formally was on business side of the company (not IT), doing mostly IT job, but specific for business. So it was easy to go to 'work from home' during COVID lockdown.

    I got new manager in mid-2017, and problems started growing from end of 2019. In Feb 2020 I got first letter from the manager, stating examples of my 'performance below standard'. I had three such letters, with periods of about two months each to address the problems of my performance. I got good words from him at the end of August, but working till 1 - 2 am most days of the week in summer got toll on my health, and I 'gave up' in Sept - Oct, letting the performance to 'slip'.

    My argument to the HR that the work was really intense during Feb - Nov, and that performance improvement period matched COVID lockdown and 'work from home' , and I had 5 members of the family 'locked down' with me in two bedroom apartment, making it difficult to focus during work day, got no effect on the decision to terminate.

    Initially after the termination phone call, I was given no severance package, but then trying to prove to HR the termination was baseless, I got an offer of very few months of severance. I have few days to respond to the offer.

    I started consulting attorneys in this area of labor and employment law, in details, only in last two days and will continue doing so.

    The CEO of the company stated on Bloomberg and on Yahoo News that there will be no COVID-19 related layoffs in 2020. I was trying to argue to HR, that even though my case is not directly related, it's been affected indirectly, by not having an office environment, where I would be able to focus on my work. Over the years with the company I only had handful days when I worked from home. Nowadays, my son's school is closed during COVID pandemic and we, parents, decided against kindergarten for younger one, due to, obviously, the virus danger. (yes, most families are 'in same boat' in NJ nowadays).

    I have successful years in the company prior to mid-2017, with good reviews.

    I don't know if I should provide examples of my 'performance' here, but most of the prior managers from same company would not consider those situations as problematic. Also, one other prior-manager-of-mine I consulted with on those letters, told me I'm being framed with nonsense. Still, HR's main argument for termination are these records (managers letters).

    To be honest, the value I provided, and the feedback I got from co-workers, - I'm shocked by the termination event. I was in the middle of several projects, with a couple of them quite important for the business area I was in. It feels like the HR saw the opportunity to get rid of me, say, due to age and years with the company, and they acted.

    I've been told I have two years to start the case in the court. One way or me: me I should wait till more pandemic precedents in this employment law area gets adjudicated in the court system (NJ) and come back when I have better stance.

    I would appreciate your opinion on what I should and can do in my situation ( position termination due to 'performance below standard' ).
    I would accept the severance package that they offered. It may only be a few months, but it's better than nothing. Even in a best case scenario you would have to prove that some kind of illegal discrimination was what motivated the termination, and with those letters from management, it could be very difficult to prove that.

  4. #4
    Join Date
    Dec 2020
    Posts
    4

    Default Re: Performance Below Standard- Performance Improvement Period Matched Covid Lockdown

    Thank you for quick answers. I appreciate them. They help me in my judgement about my situation with job termination.

    First thing I have to mention, that the performance improvement process is modern form to eliminate job position of employee. Is this correct ? Then, can it be called a 'loophole' in the law? (Sorry, I'm new in this area).

    Second thing, I assume the professional (attorney) view on my situation is dictated by pre-COVID environment. Is this true on what I see in your answers? My analogies might be weak, but look: prior to COVID, only 60 days allowed for COBRA decision after job termination, and what I read now - it's after official date of pandemic (not yet announced) + 60 days + 60 days. Are we in the same boat as in pre-COVID time in the employment law?

    I have more question on awkwardness of this situation, but will save them for later.

  5. #5
    Join Date
    Mar 2013
    Posts
    18,340

    Default Re: Performance Below Standard- Performance Improvement Period Matched Covid Lockdown

    Quote Quoting krylya
    View Post


    I would appreciate your opinion on what I should and can do in my situation ( position termination due to 'performance below standard'
    Sorry, forget about legal action. It'll cost you big bucks in attorney fees and you aren't likely to win.

    File for unemployment ASAP. If you haven't already done so you might have blown a few weeks benefits.

    Take the severance pay and be done with it.

    First thing I have to mention, that the performance improvement process is modern form to eliminate job position of employee. Is this correct ? Then, can it be called a 'loophole' in the law? (Sorry, I'm new in this area).
    Maybe, but so what? You're employed at will and can be terminated for any reason or no reason (except illegal discrimination) unless you have a bona fide contract, collective bargaining agreement, or civil service.

    Second thing, I assume the professional (attorney) view on my situation is dictated by pre-COVID environment. Is this true on what I see in your answers? My analogies might be weak, but look: prior to COVID, only 60 days allowed for COBRA decision after job termination, and what I read now - it's after official date of pandemic (not yet announced) + 60 days + 60 days. Are we in the same boat as in pre-COVID time in the employment law?
    Here's some information that includes something about COBRA. It's in federal gobbledygook and I can't make head nor tails of it.

    https://www.federalregister.gov/docu...aries-affected

    I suggest you don't wait to elect COBRA continuation since you have to pay the premiums retroactively to date of termination anyway.

  6. #6
    Join Date
    Dec 2020
    Posts
    4

    Default Re: Performance Below Standard- Performance Improvement Period Matched Covid Lockdown

    Thanks for your post, "adjusterjack", and to prior bloggers on this thread.

    1. "about legal action": can I write to senator stating that PIP is used to get rid of the employee (no matter how much responsibilities you carry in job role, the manager can get rid of you) ?
    2. That your link on COBRA confirms my words here:see IV.Examples. I'm in the process of using NJ marketplace instead. My question here, do we have such updates covering 'employer-employee'?
    3. I filed for Unemployment next week after my position was terminated, and escalated my case on 10 days after, but have to wait for investigation to conclude, before I can certify weekly and receive benefits. The NJ Unemployment agency is overloaded and "thousands of cases" are waiting for resolutions. I keep log of screen shots when I attempt to certify online and I call as well on designated days.

    Here is my key logical circle :

    (A) CEO stated in the media no COVID-19 related lay-off in 2020 ---> (B) "employed at will ",etc., contradicts with what CEO stated, because it's National Emergency period (COVID-19), even though it's not pure legal situation, but mostly about CEO reputation ---> (C) I was not provided working environment (office) to address PIP program during this period (go back to "CEO stated ..." on the left)

    Please, help me to understand how this logic should work ( and I'd say this is my biggest puzzle for now).

  7. #7
    Join Date
    Oct 2006
    Posts
    16,474

    Default Re: Performance Below Standard- Performance Improvement Period Matched Covid Lockdown

    Quote Quoting krylya
    View Post
    Thanks for your post, "adjusterjack", and to prior bloggers on this thread.

    1. "about legal action": can I write to senator stating that PIP is used to get rid of the employee (no matter how much responsibilities you carry in job role, the manager can get rid of you) ?
    2. That your link on COBRA confirms my words here:see IV.Examples. I'm in the process of using NJ marketplace instead. My question here, do we have such updates covering 'employer-employee'?
    3. I filed for Unemployment next week after my position was terminated, and escalated my case on 10 days after, but have to wait for investigation to conclude, before I can certify weekly and receive benefits. The NJ Unemployment agency is overloaded and "thousands of cases" are waiting for resolutions. I keep log of screen shots when I attempt to certify online and I call as well on designated days.

    Here is my key logical circle :

    (A) CEO stated in the media no COVID-19 related lay-off in 2020 ---> (B) "employed at will ",etc., contradicts with what CEO stated, because it's National Emergency period (COVID-19), even though it's not pure legal situation, but mostly about CEO reputation ---> (C) I was not provided working environment (office) to address PIP program during this period (go back to "CEO stated ..." on the left)

    Please, help me to understand how this logic should work ( and I'd say this is my biggest puzzle for now).
    Here is something to understand...in almost every state in this country, including yours, an employer can fire an employee for any trivial reason they like, as long as it's not one protected under illegal discrimination laws.

    So, if you don't meet any of the criteria for illegal discrimination, you can be fired for something as simple as your manager not liking the color of your shirt.

    Seriously...take the severance and move on unless you believe that you can prove that they fired you under illegal discrimination...but let a local attorney advise you if you really think that.

  8. #8
    Join Date
    Mar 2013
    Posts
    18,340

    Default Re: Performance Below Standard- Performance Improvement Period Matched Covid Lockdown

    Quote Quoting krylya
    View Post

    1. "about legal action": can I write to senator stating that PIP is used to get rid of the employee (no matter how much responsibilities you carry in job role, the manager can get rid of you)
    This may seem snide but it's the only way I can say it. You can write to the senator, the congressman, the President, God, and you can cast runes around the the fire in a clearing in the woods where ley lines converge and nothing will change how Corporate America works.

    I'm surprised that you haven't learned that in the 20 years you worked for your company.

    Quote Quoting krylya
    View Post
    2. That your link on COBRA confirms my words here:see IV.Examples. I'm in the process of using NJ marketplace instead. My question here, do we have such updates covering 'employer-employee'?
    What I showed you was about as current as I could find.

    Quote Quoting krylya
    View Post

    (A) CEO stated in the media no COVID-19 related lay-off in 2020 ---> (B) "employed at will ",etc., contradicts with what CEO stated, because it's National Emergency period (COVID-19), even though it's not pure legal situation, but mostly about CEO reputation ---> (C) I was not provided working environment (office) to address PIP program during this period (go back to "CEO stated ..." on the left)
    What you are missing is that what the CEO says one minute he can unsay the next minute. Your job and duties are what the employer says they are at any given moment. Company policy is what the employer says it is at any given moment, even if it's in the employee handbook. There's no logic to it. Employees are expendable and easily replaced. The CEO's "reputation" counts only among other CEOs.

    By the way, if you are concerned about unemployment compensation, performance termination is still eligible for benefits.

  9. #9
    Join Date
    Feb 2020
    Posts
    750

    Default Re: Performance Below Standard- Performance Improvement Period Matched Covid Lockdown

    Quote Quoting adjusterjack
    View Post
    This may seem snide but it's the only way I can say it. You can write to the senator, the congressman, the President, God, and you can cast runes around the the fire in a clearing in the woods where ley lines converge and nothing will change how Corporate America works.

    I'm surprised that you haven't learned that in the 20 years you worked for your company.

    What I showed you was about as current as I could find.

    What you are missing is that what the CEO says one minute he can unsay the next minute. Your job and duties are what the employer says they are at any given moment. Company policy is what the employer says it is at any given moment, even if it's in the employee handbook. There's no logic to it. Employees are expendable and easily replaced. The CEO's "reputation" counts only among other CEOs.

    By the way, if you are concerned about unemployment compensation, performance termination is still eligible for benefits.
    If a policeman, a fireman, a union worker or an employee of a mega-Corp was naive enough to write in here for the same advice I doubt you would be stupid enough to tell them that they can be fired at any minute for any reason.

    What a pass-time, telling folks they are screwed. And you want to be seen as an expert on corporate America?

  10. #10
    Join Date
    Mar 2012
    Posts
    1,360

    Default Re: Performance Below Standard- Performance Improvement Period Matched Covid Lockdown

    Quote Quoting Harold99
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    And you want to be seen as an expert on corporate America?
    Totally unfair. It was obvious from the post that this person was NOT in a union or had any civil service protections. You have no clue what adjusterjack would have said had there been an indication that there was an exception.

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