Demand independent probe to fight false job review

DEAR CARRIE: My husband is a custodian at a private school. He hurt his knee at work, filed an accident report and went to a doctor as a workers' compensation case. His doctor recommended an MRI. In the meantime, his employer seems to be trying to get rid of him. Under orders, a supervisor changed my husband's performance evaluation to "needs improvement" from the "satisfactory" review initially submitted. Can they do this? My husband is and always has been a very conscientious employee. If the company lets him go, does he have any rights? We don't have any money to hire a lawyer if the person requires a retainer.
-- Adding insult to injury

DEAR ADDING: Increasing numbers of workers find themselves in situations like your husband's, said a Manhattan employment lawyer who represents employees.

"False performance reviews, such as your husband's, are being increasingly used by employers all over the world as a concocted paper trail to justify either firing employees they no longer want around or to induce those employees to quit in anger or disgust," said Alan Sklover, a partner at Sklover, Donath & Felber in Manhattan.

Those departures compound difficulties for employees because they leave without severance, often don't qualify for unemployment benefits and in some cases are not even entitled to COBRA health-care continuation, Sklover noted.

"Sadly, to use a baseball term, many employers see that as a grand-slam result," he said.

From the information you provided, it appears your husband has always been a good employee, Sklover said. Now, his employer may feel it will be a hassle to accommodate your husband's need for medical appointments, or his possible difficulty with certain parts of his job, such as heavy lifting.

"None of those things, though, are valid reasons to fire an employee," Sklover said. "And worse, these reasons may even constitute violations of law; for example, illegal retaliation for filing a workers' compensation claim, or illegal discrimination against someone now viewed as partially disabled."

Since your husband works for a private school, Sklover suggests he send an e-mail or letter to the headmaster, dean or the trustees. He should send the letter by certified mail, by overnight delivery service.

"Your husband's letter should request an objective, independent investigation of his performance and his performance review," Sklover said.

This strategy doesn't require an attorney, although it may be wise to have an attorney review your husband's draft letter, he said. The approach, Sklover said, is likely to both forestall the firing your husband expects, and may well prevent it, he said. 

DEAR CARRIE: Non-exempt employees at our company have to punch a time clock. If you punch in one minute past the hour, the clock automatically subtracts 15 minutes from our time. When we punch out for the day, we have to punch out eight minutes after the hour to make up the 15 minutes subtracted at the beginning of our shift. Is that legal? We feel shortchanged. -- Right rounding?

DEAR RIGHT: The math seems tortuous and questionable. But the principle of rounding is straightforward. Federal labor laws say it is legal as long as non-exempt, or hourly, workers are paid for all the time they work.

For more on how to respond to questionable performance reviews click here to go to SkloverWorkingWisdom.com. Click here for more on rounding and labor law at ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=f9417119d3801fd763a2e1480847a0f6&tpl=/ecfrbrowse/Title29/29cfr785_main_02.tpl