Overlawyered notes an interesting law.com story about a recent Illinois appellate court opinion involving an in-house counsel who challenged his firing after a performance review. The appellate opinion is Popko v. CNA Financial; a summary from IICLE is #2 as you scroll down here.
When a court’s opinion starts out like this, it is often a sign of not-so-good things to come for an employer:
“Upon returning from a planned two-week vacation and honeymoon to his workplace of almost 16 years, plaintiff Daniel Popko learned that he had lost his job for poor conduct he displayed during a performance review.”
The appellate court agreed with the trial court that communications within the corporate environment (such a memoranda detailing the situation and seeking authorization for the termination) can constitute publication for defamation purposes. Also noted are questions raised at trial whether CNA properly investigated the alleged performance review conduct, given plaintiff’s prior positive performance reviews.
At some point in the case, CNA asserted “at-will” status for plaintiff, but the trial court did not grant the associated motion. The appellate court saw the question of defamation to be legally distinct from whether an employee is “at- will” and could therefore be discharged for “any reason”.
A helpful list of considerations relating to performance reviews is found here.
Your mileage may vary. And in this area of in-house practice, it almost certainly will.