Evaluations being shared with others.

Review and evaluation law 101

The answer to your question requires some background on performance reviews and evaluations. These play a huge role in an individual's workplace success. Employers base promotion, demotions and terminations on reviews and evaluations, together with their cousin, the performance improvement plan (PIP).

Surprisingly, employees have few rights regarding the substance of a review. First, reviews and evaluations are the property of the employer. In Ohio, a private sector employee has no right even to see an evaluation, much less make a copy of it. Public sector employees can probably get their reviews with a public records request, but so can everyone else.

Fortunately, most employers allow employees to see their own personnel file. This is because doing so is a sound business practice, however, and not because the employer has to do so.

Second, you have little control over the contents of the review or evaluation. The employer does not have to change it if you object. At most, you might get an opportunity to write a rebuttal. You were therefore fortunate, in a sense, that the school district changed the review. Your problem is now with tracking down and stopping distribution of renegade copies of the old review.

You might be able to pursue a claim for defamation if untrue factual statements in the review harm your reputation, but only if the review is "over published" or written out of malice. Employers are generally "privileged" to get performance reviews wrong, even when it harms an employee's reputation. The privilege is a defense to a defamation suit. The idea is that employers should be able to communicate candidly with employees without worrying about getting sued. Otherwise, the employer would not be willing to let you know how it believes you could improve.

The employer loses loses this privilege if it communicates the negative review beyond a large "need to know" group or by writing it out of malice. I do not believe that over publication would occur if a member of the public asked for the records with a public records request. Happily that does not appear to be the case for you. Instead, it sounds like there may be both over publication to the new employee, as well as some evidence of malice (pay back for not going to the social event). To evaluate whether that is the case and advise you of your rights, we would need to schedule a consultation.

Returning to performance reviews generally, a third problem is the reluctance of a court to do anything about a false review until the false review results in a tangible harm, like termination, loss of a raise or denial of a bonus. That is, discrimination and retaliation laws protect employees only from "tangible, adverse employment actions." Generally, tangible means a loss of money. Therefore, unless the negative review has a direct result on pay, it is not probably not tangible enough to trigger court intervention. Courts do this to avoid being a "a super human resources department."

If the retaliation in your case is unlawful (at least one Ohio case says retaliation for refusing to donate to United Way is not unlawful; the same may be true for declining an invitation to a social event), it is probably not actionable in court, especially since the school district undid the false one.

If an employer is using a false review as a paper trail to justify a discharge down the road, the employee can use the fact of the false review to prove unlawful discriminatory or retaliatory motive. This is known as "pretext" proof.

So, you have limited rights to control what goes into the employer's review. In your case, your employer corrected the review, so the problem is not there. Instead, the problem is with the supervisor who may be harming your reputation by distributing the false review. For specific advise as to how to deal with him or her, feel free to call for a consultation.

posted by Neil Klingshirn  |  Dec 8, 2005 09:04 AM [EST]