There’s no other way to say it: receiving negative feedback at work hurts. Members may sometimes receive negative performance evaluations or receive counseling memos, letters of instruction, or similarly-titled documents that contain criticism of their job performance. If a member comes to you having received such a document, we recommend connecting them to CASE staff as soon as possible. Though informal negative documents don’t come with formal appeal rights, and cannot be grieved, members have certain rights to exercise under the MOU.

First, any evaluation material or material relating to an employee’s conduct, attitude, or service may not be placed in to their Official Personnel File (more on OPFs here) without being signed and dated by the author of the material and by the employee receiving the document. (Article 16.6(A)(5)).

Employees have the right under the MOU to submit a written rebuttal to any negative material destined for their personnel file (Article 16.6(A)(4) and Article 16.7(B)). These rebuttals are to live in any file where the negative document is kept, along with that negative document, for as long as the negative document lives there. Negative material can only live in official personnel files for up to 3 years.

If an employee wishes to write a rebuttal to negative documentation, we suggest you connect them with CASE Staff. Here’s some basic advice about rebuttals that you can also share with the employee when discussing the issue with them.

• Acknowledge the emotion of the situation and ensure the employee is aware of EAP or takes advantage of available support systems.
• Employees should sign the document and return it as directed. Signatures do not mean the employee agrees with the document, only that they have received a copy of it. Do not include any extraneous commentary like “refuse to sign” or “rebuttal to follow” or “I disagree.” Just sign, date, and return.
• There is no deadline by which a rebuttal must be submitted, so employees have ample time to decide if you want to compose a rebuttal and then to compose and submit it. Note: there are other bargaining units that have deadlines to submit a rebuttal and sometimes supervisors or human resources staff can confuse the rights of different bargaining unit members. Unit 2 has no deadline. If the department insists otherwise, contact CASE Staff.
• Though called a “rebuttal,” this document’s true purpose is not to provide a direct point-by-point response to the letter received.
• A rebuttal should be composed with a hypothetical, outside third-party in mind. This hypothetical third party knows nothing about the employee or this situation aside from what is in the letter and the rebuttal. This hypothetical third party may be a prospective employer, supervisor, or administrative law judge.
• The goal of a rebuttal is to provide the impression that the employee writing it is a reasonable employee who can take direction and move on.
• Because that is the goal, rebuttals should never be longer than the letter or document that prompted them. In 99% of situations, rebuttals should be no more than 1-page in length, regardless of how long the letter of instruction or evaluation is.
• If you want to consider writing a rebuttal, here is a recommended process:
  
  
  • • Sign, date, and return the letter as directed.
    • Take out a scratch piece of paper – an actual piece of paper, not a draft email.
    • Write down exactly how you feel. Argue each point, Delve into detail. Tell them what you really think.
    • Put that paper in a drawer for 24-48 hours, minimum.
    • Take the paper out of the drawer. Crumple it up and throw it away.
    • Take out a new piece of paper or open a document on your computer (again, not an email)
    • Write a new rebuttal with the actual goal of the rebuttal in mind. It will not contain a point-by-point response. It can include some, very brief language indicating that you disagree with the fundamentals of the letter, but for the most part, you will say something like, thank you for bringing this to my attention – though I do not feel that I acted inappropriately in the call, I understand that perceptions can differ and I appreciate and support the Commission’s mission to [enact the Governor’s policy/meet climate change policy mandates/help save the world/etc].
      
      
• As unfair as it may seem to leave management’s shots unanswered, the gist of most letters of instruction or negative evaluations is that the employee did not or does not follow directions. The hypothetical third-party reader is going to be looking for evidence that either supports or negates that assessment. A point-by-point explanation of all the ways they are wrong would give the department evidence and work against you. For most people, this feels wildly unfair, but we have seen judges take that from these situations and we know this is how humans tend to operate.

CASE Staff are happy to work with employees on their rebuttals to ensure that the process best serves the employee and their long term career goals.