EntertainHR

Television Shows and Performance Evaluations: It’s All about the Ratings, Baby

In May each year, broadcast TV, cable, and streaming services begin announcing series renewals and cancellations.  This process continues well into the summer.

Source: filo / DigitalVision Vectors / Getty

This year, many old standbys were renewed including The Big Bang Theory, NCIS (yes, all 50+ versions . . . ok, ok, there are only three in the franchise but . . .), Law & Order, and American Idol.  And, in case you missed it, notable shows that were axed include Quantico, Scorpion, Designated Survivor, Kevin (Probably) Saves the World, The Exorcist, Great News, The Mick, The Last Man on Earth, and Lucifer.  Additionally, it’s the end of an era for The Jerry Springer Show, which was cancelled after 4,000 episodes and 27 seasons.  Further, while we are sad that Unbreakable Kimmy Schmidt (which we discussed here) will end its run on Netflix, Will & Grace (covered here), The Marvelous Mrs. Maisel (covered here), Superstore (covered here), Good Girls (covered here), and many others were renewed and will continue to provide great fodder for the employment law nerds that bring you EntertainHR week after week.

One cancellation that drew a lot of fury from fans, however, was Fox’s decision to call it quits with Brooklyn Nine-Nine. Indeed, celeb fans Lin Manuel and Mark Hamill took to Twitter to campaign for the show:

   

Given that the comedy ran for five seasons, received rave reviews from critics, and even won a Golden Globe in 2014, many people have been scratching their heads and wondering, “Why cancel it now?”  Reportedly, the reason is simple: ratings.  The show’s live viewing ratings have consistently been dropping from season to season. While it averaged 4.8 million viewers per episode in season 1, Brooklyn Nine-Nine’s live viewership has declined since season 3, drawing only 2 million live viewers with its season 5 premiere.

The term “ratings” has another connotation in corporate America, but “ratings” can be equally foreshadowing.  A “rating” typically refers to the score that an employee receives on a performance review.  A “development needed” or “below expectations” rating can be an indicator that an employee’s “run” with a company is nearing the end.  In the world of television, networks have used the Nielsen rating system, since 1947, to measure audience size and composition of television programming in the United States.  (Source: Wikipedia.)  The Nielsen Company collects traditional television ratings data by choosing a cross section of sample households and giving these viewers a Nielsen box. With the usage of digital video recording (DVR) and streaming services like Netflix and Hulu, gauging viewership has become trickier, though not impossible.  In the workplace, the reliability and effectiveness of performance reviews similarly depends on several factors, including how the organization structures the review and how supervisors implement them.  If an employee is terminated and litigation ensues, a performance review – and the “ratings” therein — can be a significant piece of evidence.  For example, if an employee is terminated for poor performance and the prior reviews tell the story (preferably, with examples) of how the employee failed to meet the employer’s expectations despite being given many opportunities to improve, then the review may be slam-dunk evidence in favor of the employer.  However, terminating an employee shortly after a positive rating can be risky.

Take, for example, the case of Linkous v. Stellarone Bank, Civil Action No. 7:12-cv-00229, 2013 U.S. Dist. LEXIS 78590, at *7 (W.D. Va. June 4, 2013).  In Linkous, a long-time employee was fired for making an inappropriate comment.  Refusing to dismiss the case at summary judgment, the Court relied heavily on plaintiff-employee’s positive performance reviews, including one signed by the decision-maker just five months before he fired her:

The fact that just five months before her termination [plaintiff-employee] received “exceeds expectations” reviews on the same behavioral and leadership qualities that stand as the proffered reason for her termination can reasonably be interpreted as an indication that [defendant-employer’s] justification arose as a pretext for its desire to replace [plaintiff-employee] with a younger manager.

The Court explained that “[i]n appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose.”  Linkous, 2013 U.S. Dist. LEXIS 78590, at *16.  The Court held that “[a] fact finder[, in Linkous,] could reasonably be suspicious of [defendant-employer’s] refusal to offer coaching or additional training to an employee who was until recently so highly regarded, particularly in the areas of her position now being called into question” and allowed the case to proceed to trial.  While courts generally do not sit as “super personnel departments” and second-guess an employer’s business decisions, the Linkous decision signals that courts are willing to step in when the employer’s own rating of an employee seems to contradict its termination decision.

On a final note, much like the Court kept the Linkous case alive for trial, NBC rescued Brooklyn Nine-Nine from an untimely demise and picked it up for a sixth season.