New York Lawyer
July 15, 2004

Q:
I was very intrigued by your June 10th answer to a summer associate who was left in the dark as to his or her standing with the attorneys. You stated:

"The attorneys you�re working with have a clear obligation to be open and candid about any issues they have with your performance. If you have a `fairly clear impression that they are not pleased,� but have no idea whether it�s because of your work product, your personality, or the baseball team you root for, this speaks volumes that the supervising lawyers have dropped the ball on accountability."

After reading your response, I wondered what your position is in the same scenario with regard to regular attorneys and how you think they should manage the issue.

More specifically, hundreds of attorneys over the past few years were told, in both written and verbal feedback, that they were doing great work. Suddenly they were told that they were to be let go because of performance reasons. Several firms are known to have "puffed up" personnel records at the behest of senior partners by including statements that contradict long histories of positive performance.

Aside from neglecting their accountability, and considering that the law firm's actions were unexpectedly disruptive to associate welfare, would you consider the law firm's behavior as actionable conduct? One more factor that may help your consideration of this question is the fact that several of these firms had written policies in place describing in detail the process of placing an associate on notice and opportunities to improve performance, or dispute the opinions of a partner's review, prior to an official termination. These policies were not followed.

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A:

This is poor, maybe egregious management, if the facts stated are true, but I doubt there�s a claim here. Unfortunately, much of bad management isn�t anything you can go to the courthouse about.

"Poor management is not actionable," says Lynne Anne Anderson, a partner in the employment and labor group of Sills, Cummis, Epstein & Gross, P.C., in New Jersey. If firm members "puff up" accounts of poor performance, Anderson pointed out, it�s not necessarily a problem unless they do so to mask a legally improper reason to terminate (like race, sex, sexual orientation, depending on applicable statutes), in which case there would be a cause of action. In that situation, according to Paul Buchanan, head of the labor and employment group at Stoel Rives, LLP, in Oregon, "Sudden performance concerns that seem to contradict other recent feedback can be very potent evidence for a discharged employee who is claiming that the discharge was the result of an impermissible motive like retaliation or discrimination. This kind of retaliation is particularly effective when the employer�s actions appear to contradict their own policies."

And Anderson points out further, "If the at-will relationship is not clearly established, or there is a contractual obligation via an employment agreement which says there will be a certain amount of notice, that would be a different story."

This doesn�t mean suddenly raising or altering performance standards as a way to rationalize terminations is a favorable management approach. Poor communication and/or poor or nonexistent setting of expectations about employment and the factors that govern whether you�re still going to have a job represent ineffective management. The fact is, whether we like it or not, with economic issues often come dismissals, even of high-quality employees. We see it everywhere in American work forces these days as a reflex adjustment whenever businesses get worried about the bottom line.

There are other ways of reacting to these pressures -- being open with the workforce about problems; having a policy of avoiding layoffs at all costs and taking steps to adhere to that policy; asking that everyone take a minor, temporary pay cut to avoid layoffs; doing massive cost cutting in other areas -- so it�s not as if there is only one solution to these problems. Furthermore, intelligent management will be careful about overstaffing during boom times, so that they�re not so stuck in lean times (of course, the opposite occurs where the staffing is too lean and when a boom occurs the firm can�t respond adequately). Careful management of salary levels -- remaining competitive but not overextending, which can lead to financial problems as well -- is another important factor.

Sincerely,
Holly English
Principal Consultant, Values at Work