If you are a long term employee with a stellar performance record it might come as a shock if all of the sudden you were being written-up for trivial offenses. Maybe the write-ups were for things that never got you written-up before or maybe they were for things that weren’t even true. You might suspect that your employer is laying the groundwork for your termination and wonder if there is anything that you can do.
If you find yourself in this predicament there is good news and bad news. First the bad news: As an at-will employee (California, along with the majority of other states is an at-will employment state, meaning employees can be fired without cause) the unfairness or even the inaccuracy of the write-ups alone is not enough to constitute wrongful termination. The process of formally disciplining an employee is not even a necessary step to executing a legal termination. However, the fact that the employer is going out of its way to create a record of poor performance, when there is no poor performance, might provide some insight into your employer’s motivation.
Which brings us to the good news.
The fabrication of a disciplinary record after a consistent period of positive performance, while not conclusive evidence in and of itself, might suggest a nefarious motive. Perhaps a stellar employee recently revealed a disability and then the negative reviews started flowing in? The timing of the write-ups in relation to the revealed disability might actually help to prove that the employer was motivated by the disability, particularly if it can be proven that the write-up was factually inaccurate. Situations like these highlight the importance of maintaining a written record of all performance reviews, write-ups, and other documents that an employee may receive from their employer. Alone, a negative review may appear bad, but coupled with several positive reviews and an e-mail to the employer describing something like a disability and you may be able to paint an entirely different picture.
As with most employment law cases, ultimately, it may come down to your employer’s true motivation for terminating you. False write-ups alone do not make a case. They can however play an integral role in showing that the employer did not fire you as a result of performance or disciplinary concerns, but that these were designed as a pretext to cover up a wrongful termination. For these reasons it is very important that a current employee keep a record of all important documents, and communicate with their employer as much as possible in writing. At the end of the day the documents might tell the most truthful story of all.