Law has few protections against secret job ratings

CAN THEY DO THAT? / WORKPLACE ADVICE

July 20, 2005|By CARRIE MASON-DRAFFEN

Q: I was laid off recently because of a reorganization, or that is what the head of human resources told me. The reason also was cited in personnel documents she gave me. But when I began applying for jobs, I suspected the company wasn't telling what was in my file to prospective employers who called for a reference. That file contained evaluations that said I met or exceeded expectations. I even received a 5 percent raise after a particularly glowing evaluation. Despite that, 12 organizations with jobs I am highly qualified for rejected me. After the last rejection, I retained a lawyer to talk with my former human resources director. After reviewing the same documents, the lawyer asked if the company had any other documentation concerning me. The director said there was "an unofficial file." It stated I was removed for "unsatisfactory performance." The file also contained a letter written by a consultant who claimed I was late with a budget document, a charge I was never given the opportunity to dispute.

Do I have a cause for action against the organization?

A: Surprisingly, your bizarre tale isn't uncommon, said attorney Scott Browning Gilly, a partner at Thompson, Wigdor & Gilly in New York.

Supervisors often maintain unofficial "desk" files on employees, Gilly said. Nonetheless, the practice is unfair not only to employees but also to companies.

The unofficial files aren't desirable from the company's perspective because they could appear as "after-the-fact creations" should an employee sue, Gilly said.

But just because something is unfair doesn't mean it's illegal.

"Unfortunately, there is no clear, legal prohibition against this specific practice," Gilly said.

But you may have a claim for defamation if you can prove that your former employer communicated a false statement that caused prospective employers to turn you away.

That is a difficult claim to prove, Gilly said.

In addition to a potential defamation claim, you may have a "disparate treatment" discrimination claim if you can prove that the company's practice of maintaining a secret, unofficial file was limited to a protected category of employees, such as only female workers or only African-Americans.

Unfortunately, many employees' abilities to protect themselves against unofficial files are limited because their states don't require companies to give employees access to employment files. But as your example shows, many companies, as a matter of practice, grant that access.

So employees always should ask to see their files and hope the answer is "Yes." A good look will help determine whether the employees and their supervisors are quoting from the same file.

Carrie Mason-Draffen is a columnist for Newsday, a Tribune Publishing newspaper. E-mail her at yourmoney@tribune.com.

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