Signs Your Employer May Be Using “Performance Issues” as a Cover for Illegal Termination | The Mundaca Law Firm

“It just isn’t working out.” “Your numbers slipped.” “We’re holding everyone to a higher standard now.” When an employer wants to end someone’s job, performance is the easiest reason to reach for, since it sounds neutral and personal at the same time. New York’s at-will rule means weak performance usually is a lawful basis for letting someone go. The trouble starts when that explanation is a cover story for something the law forbids, and The Mundaca Law Firm spends a great deal of time helping New York workers figure out which of the two they are facing.

When “Performance” Is Lawful, and When It Is Not

An employer in New York can fire you for being bad at your job, for no reason at all, or for a reason you consider unfair. What it cannot do is fire you because of a protected characteristic such as race, sex, age, disability, religion, national origin, or pregnancy, or because you did something the law protects, like reporting harassment, requesting an accommodation, or taking medical leave. When a company dresses one of those illegal motives in the language of performance, lawyers call the stated reason pretext. Proving the real motive is the whole game, and it is built almost entirely from circumstantial evidence.

The Red Flags That Point to Pretext

No single fact proves a cover story. Patterns do. The signs that tend to draw the most scrutiny include:

• A clean or strong review history that turns sharply negative within weeks of you announcing a pregnancy, disclosing a disability, reporting misconduct, or coming back from leave
• Criticism that is suddenly vague and unmeasurable, where you once had concrete targets to hit
• A company that skips the progressive discipline steps written into its own handbook, going from no warnings to termination
• A reason for the firing that changes over time, one version in the meeting, another on the paperwork, a third at the unemployment hearing
• Coworkers who did the same thing, or worse, and kept their jobs, particularly when they sit outside your protected group
• A raise, bonus, or strong review just months before you supposedly became a poor performer

That last one carries real weight. It is hard for an employer to claim you were failing in March when it handed you a merit increase in January.

The Convenient Performance Improvement Plan

A performance improvement plan can be a genuine tool. It can also be a paper trail built to justify a decision already made. Watch for a PIP with goals no one could realistically reach, a timeline shorter than the company’s usual practice, or metrics that move the moment you start meeting them. When a PIP appears right after you engaged in protected activity and looks designed to fail, it often says more about the employer’s motive than about your work.

How the Law Tests the Employer’s Explanation

Courts use a structured back-and-forth to separate real performance cases from pretextual ones. You first point to your protected status or protected activity and the fact that you were fired. The employer then offers its supposedly legitimate reason, usually performance. The burden swings back to you to show that reason is false or not the actual motive. Inconsistencies, suspicious timing, and unequal treatment are exactly the kind of proof that does this work. The New York City Human Rights Law leans further toward employees, since you generally need to show only that an unlawful reason was one of the motivating factors behind the decision, not the single cause of it.

How The Mundaca Law Firm Tests the Employer’s Story

Sorting a fair firing from a disguised one takes a careful read of the record, not just a sense of how the termination felt. The Mundaca Law Firm lines up your review history against the timeline of events, gathers the emails and written policies that contradict the official account, and identifies the coworkers and documents that expose unequal treatment. Because a disguised performance firing is at its core a wrongful termination, The Mundaca Law Firm builds the discrimination or retaliation claim that the performance label was meant to hide. Deadlines move quickly here, with federal charges generally due within 300 days and claims under the state and city human rights laws allowing up to three years, so an early review keeps your options open.

Trust the Timeline

A termination wrapped in the word “performance” is not automatically lawful, and it is not automatically illegal either. The answer lives in the details: when the criticism actually started, how it squares with your real record, and what you had done in the weeks just before. If your firing followed a complaint, a leave, a diagnosis, or a pregnancy, and the performance story does not match your history, reach out to The Mundaca Law Firm to have the timeline examined before that explanation hardens into accepted fact.