Intro (00:01):
Human resources, employee relations, the legal department are aligned against you. Your employer has trained for this day, the day you've become an expendable number at work. There are robust laws that may protect you, but unlike the company, you've not been drilled on how to wield them. You're playing catch up, there are pitfalls to avoid, and counter measures to deploy that may save your job or put you in the best position to negotiate a favorable settlement. Minutes [00:00:30] matter. Your words and actions matter even more. The Walking Papers podcast offers the first foray into learning how to turn the tables when you've been targeted at work. Knowledge is power. Let's get started.
Robert Ingalls (00:45):
Welcome back to episode two of the Walking Papers podcast, where we take aim at employment discrimination, retaliation, and harassment. I'm Robert Ingalls, and I'm here with attorney Josh Van Kampen of Van Kampen Law. If this is your first time joining us, welcome. [00:01:00] You can find a summary of this episode, along with a full time stamped transcript of the episode at VanKampenLaw.com. Josh, how are you today?
Josh Van Kampen (01:09):
I'm doing great.
Robert Ingalls (01:10):
All right. Before we get into the meat and potatoes of this show, I wanted to get a little bit more background on you for the listeners. Tell us why you became a lawyer.
Josh Van Kampen (01:18):
Well, I wasn't a good waiter. My first job out of Purdue University was as a waiter at Red River Steaks and Barbecue. I tried really hard, but [00:01:30] they wouldn't even put me on the dinner shift, so I needed to get another job. My mom was a lawyer and told me not to be a lawyer, but I did anyway. So, went to the University of Illinois. I'm lucky enough to have a job where I feel like I'm doing what I was put on this earth to do every day, especially as a plaintiff side employment lawyer.
Robert Ingalls (01:53):
So, jumping into the episode, it is titled beautifully Responding to Bullshit Evaluations [00:02:00] and Write-Ups. Tell us about that.
Josh Van Kampen (02:04):
To me, there are basically two kind of evaluations. There are the normal genuine objective evaluations that you're accustomed to seeing. Then there are the bullshit evaluations in which an evaluator is just trying to achieve a result, which is to fire someone. Then they monkey and manipulate an evaluation and its scores to achieve that objective. So, you will know a bullshit evaluation [00:02:30] when you see one. Part of what we'll talk about in this podcast is responding to bullshit evaluations, and then also putting yourself in a better position to respond to bullshit evaluations by making sure that your previous evaluations are as glowing and as positive as possible.
Robert Ingalls (02:48):
Walk us through a typical scenario receiving one of these bullshit evaluations.
Josh Van Kampen (02:53):
Sure. Oftentimes, it's an employee who's worked for a company for five or 10 years, sometimes longer, and who has [00:03:00] across multiple managers consistently been evaluated good to very good to excellent, for example. And all of a sudden, it's almost like a flip was switched and you see their mid year evaluation or the next evaluation suddenly the score plummets. Usually that's accompanied by two different scenarios. One is where you have a new manager who comes in, and it's really frustrating for me and it's frustrating for my clients [00:03:30] when, especially for example when an older worker, you know a young manager comes in, in their 20s or 30s and all of a sudden you can't walk and chew gum right at the same time. These new managers come in, a lot of times, they feel like by putting notches in their belt and replacing people, or reducing labor costs, that they're gonna be recognized for it. Sometimes they just want to make room for their friends at other companies.
Josh Van Kampen (03:56):
Then the other scenario is a lot more impactful and dangerous, and [00:04:00] that's when from the corporate boardroom decisions are made about cutting staff. A lot of times it happens where they don't want to pay severance that would normally be paid to a long term employee, and so they're converting what would normally be reductions in force into cause terminations that are not eligible for severance. In both of those scenarios, the bullshit evaluation is usually a critical tool, or the springboard [00:04:30] into the ultimate termination decision. It is really the battleground that we're gonna fight on later in defending, or trying to prove that a termination was discriminatory.
Robert Ingalls (04:42):
In the moment that I'm receiving this evaluation, what are my options at that point? What do I do?
Josh Van Kampen (04:49):
First of all, if any of the listeners have kids, I know you have kids. I have kids. They would say, "Are we there yet? Are we there yet? Are we there yet?" [00:05:00] In an evaluation meeting where you're getting a bullshit evaluation, I want you to do that by saying why. If you can say why 20 times in your evaluation meeting for each poor score, we want to put the manager on the spot to justify scores on a bullshit evaluation. In the latter scenario, we talked about where it's a corporate directive, and you may have a manager who's a nice guy and doesn't have a bias, but is just being given marching orders [00:05:30] to fire people. Sometimes they, I've had managers just disavow certain scores and just say, "Look, I don't think you deserve it either."
Robert Ingalls (05:39):
Just change it on the spot.
Josh Van Kampen (05:40):
No, they won't change it on the spot, but he'd just say, "Look, off the record, I didn't want to give you that score, but this is coming from on high. They told us the scores need to come down." So, by putting the manager on the spot, oftentimes they're not prepared, so you may get admissions or just they're just dumbfounded and responding to some of your [00:06:00] questions for why. Then coming out of this evaluation meeting, then I'm wanting my future client to be taking contemporaneous notes about all of the why's that they asked and all the inadequate answers that were given in response. So yes, be that annoying kid in the back of the car.
Robert Ingalls (06:21):
I like that. That was a good callback to episode one about taking very good notes that are contemporaneous with the actions going on that may be [00:06:30] admissible in court later. Why are evaluations so important long term?
Josh Van Kampen (06:35):
If you end up in a litigation situation, I think evaluations are considered basically the holy bible as far as evidence are concerned. I think judges and juries look at evaluation as the most reliable document. So, in the scenario we talked about where you have an employee that had positive evaluations for seven, eight years and then all of a sudden gets a bullshit evaluation, [00:07:00] those previous evaluations are, like I said, the gold standard of evidence, and it's so much fun for a lawyer like me to be confronting this new manager and having him explain why three previous managers across seven evaluations thought my client was great and all of a sudden isn't good enough to make you happy. That's why it's important even before someone thinks that they're being targeted for retaliation or discrimination, is [00:07:30] to fight for those early evaluations and make sure those early evaluations are as positive as possible.
Josh Van Kampen (07:38):
One common tactic of the, we're just gonna call them the managed out manager, where the objective is to manage out. They will go back and mine those old evaluations for even the slightest of constructive criticism in a previous evaluation, and oftentimes they'll use that to pull the thread with other, like a tapestry of a [00:08:00] really successful career. If my clients, instead of allowing that one or two, even if it's a minute constructive criticism, if you can fight that off even with a good manager, then it makes it harder for the managed out manager to be able to pull that thread. In terms of people that are completing self evaluations, for example, you really need to work your ass off to [00:08:30] make sure that those evaluations are as positive as possible because once you're across the conference room table talking to me, those evaluations are the sort of evidence that I'm hopefully gonna be able to utilize successfully for you.
Robert Ingalls (08:45):
Is there any type of appeal process? I'm sure every company is different, but in general, is there an appeal process that most employees can take advantage of?
Josh Van Kampen (08:53):
The first thing you would want to do is review the employee handbook and see if there's a process to dispute an evaluation. Sometimes [00:09:00] there is and sometimes there isn't, but regardless, the first thing I would, in terms of disputing an evaluation would be disputing it with your manager. So, in the evaluation meeting, I think that's when you say, "Why? Why? Why?" But in follow-up to that, I think is when you start to marshal your evidence in a subsequent meeting or in an email. Email that back to your manager and see if you can get your manager to revisit those scores. Oftentimes, that's just an exercise [00:09:30] and the manager is not gonna revisit the scores, but it's the manager's inaction, or for example failure to respond to that rebuttal information makes them look bad. So, that would be the first thing, is to rebut to the manager who gave you the bullshit evaluation.
Robert Ingalls (09:47):
After you hit a brick wall when you're sending that rebuttal and you're not getting anything out of it, what do you do next?
Josh Van Kampen (09:52):
Well, the next escalation point in a typical case is to go to human resources. Basically what you're doing [00:10:00] is re-couching the same rebuttal that you sent to the supervisor to human resources. I'll have an entirely separate podcast on dealing with human resources because human resources is not your friend. You're very unlikely to get any accommodation or change from human resources, but you still need to go through that hoop. That can be how to do it and how to do it right. It can be a tough judgment [00:10:30] call, so we'll have a separate podcast on that. But in general, that's the next escalation point is to complain to human resources.
Josh Van Kampen (10:38):
Now, human resources are either gonna ignore it, which is great, or if they don't ignore it, they're gonna probably conduct a half assed investigation. Then I or another lawyer will be able to criticize the lack of thoroughness of the human resources investigation.
Robert Ingalls (10:59):
In the last episode, [00:11:00] we talked a little bit about building your case and gathering evidence. Is there any good counter measures in this situation when you're responding to these bullshit evaluations that you can start to build your case?
Josh Van Kampen (11:11):
Yeah, definitely. Along the line during the year, you should be approaching the managed out manager either in person, on a telephone call, or in an email, and just saying, "Hey, how am I doing? Is there anything that I need to improve on? Are you happy?" Oftentimes, the managed out manager [00:11:30] might be too busy to respond or just he knows he wants you out and he's just not gonna devote the time to emailing you a bunch about your performance. So, those ignored hey how am I doing emails really help me attack that managed out manager down the line. So, that's one thing.
Josh Van Kampen (11:52):
Then again, creating contemporaneous notes of those interactions with your manager when you ask, "Hey how am I doing." [00:12:00] Another thing is oftentimes you in your position, especially if you're a professional, there are other people that you work with within the company, like business partners or internal customers. So, you want to be creating a dossier of positive feedback that you receive from business partners and customers. Those are, when they're there, that they're really hard for the managed out manger to overcome because I basically put it to them like this. I'm like, "So are you saying that the business partner [00:12:30] that you work closely with is a bad evaluator of talent? You're better?"
Robert Ingalls (12:36):
No good answer there.
Josh Van Kampen (12:36):
Right. So, that can be like gold. A lot of times, those are conversations, not necessarily emails with a customer or internal customer. Once again, that's where the contemporaneous notes can come in handy big time.
Robert Ingalls (12:51):
Great. We covered a lot of ground. Is there anything, any last words on the subject?
Josh Van Kampen (12:55):
The other thing is stay in touch with your previous managers. You remember [00:13:00] when we graduated law school, they said, "Well make sure you keep in touch with your old classmates because they're your future clients." Same thing goes with your departed managers. If we end up in a litigation, those departed managers are gonna be potential witnesses. So, all those beers that you drank for free on the corporate card from your old manager, it would make sense to buy a few for him or her.
Robert Ingalls (13:22):
Great advice. All right. I look forward to sitting down again.
Josh Van Kampen (13:25):
Yeah, likewise.
Outro (13:28):
Congratulations for taking an important [00:13:30] initial step in turning the tables at work. But this podcast is just an educational resource. It does not constitute legal advice and is no substitute for consulting an employment attorney about your unique situation before making legal decisions. Visit our website for more online resources and videos at NCEmploymentAttorneys.com, or better yet, call (704) 247-3245 for a free initial intake interview, so Van Kampen Law can evaluate your case. Until next time, keep your [00:14:00] head up and your wits about you.
