False statements screw me out of bonus

[johhnyx]

My state is New York State.

My former large, Fortune500 employer went to a pay/perf. system a couple of years back for all professional (I am exempt) employees, based on their performance review (PA) annually, which also sets the regular raises. (hah!) So last year, tough times, etc. they said they were "postponing" the payout, which was scheduled to be a "bogey" of about 2% of your annual wages. To make us happy, they said they'd add it to this year's total. So you need to work all of 2008, and your payout would be in April 2009 for last year's work.

I was laid off in late Jan, and my last day there was end of Feb. The PAs are normally handed out in April. When I never received any bonus money direct deposited, I called my former boss, and asked to see a copy of my last PA.
Their payout systems works like this: As a percentage of the "bogey", a "1" gives you a 125% payout, a "2" gives you 110, a "3" (typical performance) gives you 100%, a "4" (less than great) gives you 75%, a 5-zippo.

I assumed they were going to give fairly lousy numbers to us, like a 3 or 4, since we were laid off. The layoffs in my division ran about 33%, so it was a huge number and really affected a ton of high-quality people. They are operating very bare-bones right now. The company is cash-poor like everyone now. They've suspended matching 401K contributions, everyone remaining has to take a week furlough w/o pay, etc. But when I got my PA, it was a 5 out of 5, a "totally unsatisfactory" rating, so I get nada!

Even the descriptive words on it said in many places "John did a good job on ...." A few minor criticisms, but nothing to suggest I sucked. I had 25+ years with this same company and had risen to the level of a minor manager, and had always received top reviews. My old group had been downsized out from under me, so I ended up being superfluous, but I still did all I could to help other less experienced people, etc. And this was even reflected on my Performance Review!

I know it's easy to screw people who are no longer there, but this was really ridiculous. I had regular 1-on-1 meetings with my supervisor every other week or so, and he never told me anything to suggest I was not doing at least a satisfactory job. He used to be my peer, and I ended up working for him, and I know he felt threatened by my skills, advanced degree, etc, so he always tried subtly to give me weaker assignments to work on. I always asked for more to do and was called in to help people on projects that they couldn't complete without my help, so I was told by my upper manager that they still respected me, blah, blah,etc .

After leaving, I would not have complained about at least getting 75% of the bonus award, really at least 100% (a "3" rating) would be appropriate, but as I said, I understand screwing people who leave a little bit. After all, then you give the savings to the people who are left. But this was insulting!

The gross payout for this performance pay is between 7000-8000, so we are talking not a lot of money, but I'd sure like at least some of it, which I know I absolutely deserve.

So right now, I'm planning on writing some firm but polite letters to some of the upper/mid management and see if they will relent. If not, I will go higher up the chain and at some point, if no response, threaten them with a press story. They are getting plenty of bad local press here already.

My real question is: I know NYS Small Claims Court has a limit of 5000. Can I take this into Small Claims and argue it? I did sign a severance agreement that says you won't sue them, but I believe it has a (legally required) exemption to that agreement for labor disputes. Will a Small Claims judge have any authority over this? It seems like too small a sum to fight in a real court with a lawyer, unless I sue for damages, mental distress over the bad review (silly, I know) ,etc.

Any reasonable suggestions? Or should I just chalk it up to bad luck and a cra_ppy economy? In all objectivity, I didn't in any way deserve the lowest of the low in rating. It's just plain wrong, and even his comments don't describe that low of a ranking. But words are subjective of course. It's like he could only pick at minor stuff, and was too scared to actually lie on there and say I didn't do the major portion of my assignments.

Thanks, J.

 

[FlaRiptide]

Unless you had an employee contract, your employer is not legally obligated to pay a terminated employee any performance bonus, serverance, or any other payout.

It appears you have taken the appropriate steps to inquire with higher management. Yet, don't cut your bridges if you wish to use this employment on your resume.

 

[johhnyx]

Unless you had an employee contract, your employer is not legally obligated to pay a terminated employee any performance bonus, serverance, or any other payout.

It appears you have taken the appropriate steps to inquire with higher management. Yet, don't cut your bridges if you wish to use this employment on your resume.

Thanks for the reply. I don't have an employment contract. However, the performance bonus is included in the employee agreement. They gave us a 60 day period where we were still employees and getting paid, but were no longer required to provide service.

So when this performance bonus was going to be paid (April) I was still on the books as employed. Since I wasn't going in to work at the time, I never saw my performance review until now. Their severance pay is also spelled out in the employee agreement, and I received official documents upon the termination notice stating I would get this for that, etc. And that my last official day was the end of April, so it would be clear that I was still an employee when the false PA documents were prepared.

As far a references, they will only confirm dates and job titles with any new prospective employer, nothing further. They forbid current employees from giving official job references. However, I have many of the people there whom I have worked with over the last 25 years that I have close relationships with, and they have all agreed to give me a recommendation as a former supervisor, etc.

 

[FlaRiptide]

The employer is not legally obliged to fulfill the performance bonus unless possibly you had a separate written or verbal contract indicating that you would indeed be given it. Same as the 60 day extension of your pay, they were not legally obligated to do that.

NY is an "at will" state; and I am assuminig this is non-union company?

and I received official documents upon the termination notice stating I would get this for that, etc.

If indeed your termination letter specifically said you would be receiving the performance bonus, then you most certainly would be entitled to it and would have a legal issue if they reneged. It would need to specifically indicate the "performance bonus" and not just speak of "normal" wages for the 60 days.

If you had specifically been told you would be given the performance bonus, I'd suggest a meeting with Human resources to discuss the "5" on the PA. Perhaps HR can help to set the record straight.

 

[johhnyx]

Thanks for the comments. I really need to clarify a bit.
It's not a written contract, it is documented by them in their pay structures and procedures. It is not a "bonus", but is a portion of your compensation that is held back until your year is complete and your performance/accomplishments are reviewed.

They did pay the money to several of my similarly-laid-off coworkers. That is standard procedure. I was still on their payroll very officially, when they made the payoff. I was an employee until the end of April and the checks were made in the week before. We were told not to come in to work, but we were still legally recognized as employees. I could not file for unemployment until after May because of it.

What I was told they did, was to stretch the "bell curve" for the reviews so they could justify moving more funds to the remaining employees by giving less in general to laid off ones. I got this from a remaining coworker, who got this information (off the record) from HR. So most of the people I talked to who were laid off, got significantly lower ratings than they ever had in the past.

This layoff was 33% of my division, and we have pretty much had annual layoffs for the past 8 years, so it would be hard to argue that you still had that many people on your payroll who were not performers. In fact, as short as three years ago in a layoff (when they were offering voluntary applicants to leave) I was specifically prohibited from applying for the voluntary, as I was considered "too valuable to risk leaving". Times change, I guess!

So in the case of this payoff, I was still a worker when it should have been paid, but my claim is that they artificially lowered my review of my actual accomplishments to prevent me from receiving this money. I have very good documentation to show my actual accomplishments over last year and could also provide willing coworker witnesses who would testify on my behalf that I had done a good job. In fact, in most places on my PA, it says explicitly that I did a "good job". There is a rating for "meets expectations", "somewhat meets" and "doesn't meet at all". And I received the lowest one, doesn't meet at all. Which I think is relatively easy to disprove in reasonable doubt sort of way.

If this is not considered a bonus, and I was still employed when it was to be paid out, cannot I consider the "bad PA" a misrepresentation of the facts, and the burden of the proof that I did do my job is on me? How would this be different than if they didn't send me my last paycheck for the last two weeks I worked there? Would I have to swallow that also? Even without a contract in a "at-will" work state, if I have a salary that is supposed to be paid to me and it was not, can I challenge that in a court? Assume for a minute it was my last paycheck I didn't receive. Could a small claims judge grant me a judgement on that?

If that is the case, then for the $15 filing fee, I could pretty much build I think a convincing case that I did fulfill my obligations to receive that held-back pay. I can show I was still an employee on that date,etc. If I had not received my last paycheck, where would I go for regress? If Small Claims Court has that jurisdiction, then maybe its worth my time and small amount of investment to give it a shot. If I'm missing some key difference, please let me know.

Thanks for all the good responses. John

 

[FlaRiptide]

It's not a written contract, it is documented by them in their pay structures and procedures

Contracts are a legal issue, business procedures are not.

All your employer must do is pay you a minimum wage of $7.15/hr in New York for hours worked. Your last worked day was in Feb., since your employer extended your "employment" till April it is nothing more that severance pay and allowed you to retain benefits such as health insurance, etc. if you carried any. You would not be entitled to unemployment till after your termination in April versus Feb.

Sorry, but I do not see where you have any legal issues at all with your former employer. Everything you have shown is viewed as internal business affairs.