By Curtis E. Allen, Esq.
Constructive criticism – genuine assessment of what an employee is doing correctly and what an employee can do to improve their workplace proficiency – is an important part of almost any job. While not required by any statute, the giving and accepting of constructive criticism benefits both workplace productivity and the workplace culture. But when the criticism is not constructive – when it is unmerited or becomes abusive – a serious problem can develop. This holds especially true for unfounded or abusive disciplinary actions.
Responding to negative criticism can be a daunting prospect especially for an at-will employee. There is no general law that protects at-will employees from unfounded or abusive criticism/disciplinary action. For example, without more there is nothing inherently illegal about the termination of an at-will employee by a supervisor who doesn’t follow the procedures set forth in the employee handbook. Unmerited or abusive criticism motivated by illegal discrimination or retaliation, or that violates a collective bargaining agreement or specific employment contract, is not appropriate and should be addressed.
On a billable hour basis I can help an employee address workplace criticism that is of concern. I will objectively assess whether or not the criticism is constructive. If appropriate, we can then design a written response that accepts whatever criticism is constructive while firmly but tactfully showing why the unmerited or abusive criticism is inappropriate. We try to include in that response statements from coworkers or supervisors that contain specific facts, an analysis of how the criticism reflects a failure to follow written company procedure, any written evidence that the criticism is inconsistent with other prior or subsequent critiques, and other like indicators. If there is evidence or a good faith basis to believe that the criticism is motivated by an illegal motive such as discrimination, we will say so. In such instances we also demand that an investigation and appropriate remedial action take place. If the criticism involves a disciplinary action, we apply the same methodology and if appropriate argue that the disciplinary action should be removed or reduced.
I strive to address workplace criticism and adverse action in a way that best benefits the clients. My goals are to improve the client’s workplace culture, eliminate possible termination, or prolong an inevitable termination while the client searches for other work, or possibly negotiate a severance package.
The above discussion on workplace criticism and adverse action is not and should not be taken as advice on how to deal with a particular criticism or adverse action. It should be taken as an invitation for employee to think about the criticism or disciplinary action and contact an attorney.