- Craig Levey is an employment law attorney of over 12 years.
- He says that PIPs are often used by companies to “paper the file” once they’ve already decided to fire the employee.
- If put on a PIP, you should read it carefully, consider if it’s reasonable, and decide how to respond.
This as-told-to essay is based on a conversation with Craig Levey, an employment law attorney and partner at Bennett & Belfort, P.C., a law firm based in Cambridge, Massachusetts. The following has been edited for length and clarity.
In my experience as an employment law attorney of 12 years, performance-improvement plans, or PIPs, result in termination in most cases. While there are circumstances where an employee survives the PIP and keeps working there, those situations are rare.
Many companies use PIPs to paper the file; they document the areas in which this employee is deficient, and then once the PIP is over — or sometimes even sooner — they terminate the employee and say, “As we outlined in the PIP, things weren’t going well in certain areas. We don’t feel like you’ve improved, so we’re going to part ways with you.”
PIPs are a tool for companies to prevent litigation, too, because then they can argue that they didn’t terminate the employee because of discrimination, retaliation, or sexual harassment but rather because of performance.
When an employee receives a PIP, there are three steps that I suggest that they follow.
1. Read the PIP very carefully
Many people are so shocked that they receive a PIP that they don’t actually take the time to take a deep breath, sit down, and read it.
You want to fully understand the language that’s in the PIP and what the expectations are. If you need clarification because there’s not enough information, you should go back and ask your company your questions and see if they offer support, such as one-on-one meetings with your supervisor.
2. Decide if the PIP is reasonable
Once you’ve read the PIP, ask yourself, is this PIP designed for me to fail, or is it reasonable?
A good PIP should be very clear about the areas where the employee is supposedly deficient. In a reasonable timeframe, it should spell out how that employee will get better and offer support such as regular meetings with their supervisor.
A bad PIP is very short and doesn’t articulate the areas in which the employee needs to get better, so the employee is left confused and doesn’t know what is being asked of them. There either isn’t a timeframe given, or the timeframe is unreasonable, and no support is offered to help the employee improve.
After receiving a bad PIP, the employee walks away confused or feeling unreasonable. Typically, when an employee receives a bad PIP, it means the company doesn’t want them to improve. It’s just a tool to pave the way for the termination.
3. Decide whether to respond
If, after reading your PIP, you feel it’s actually pretty reasonable and you can satisfy the requirements in the time allotted, you don’t need to respond. Just move on and focus on working on what’s needed and satisfying the requirements laid out.
But sometimes, there are unfair PIPs with requirements that even the best employee in the world could never satisfy. If the PIP is unrealistic or unreasonable, then you need to respond.
If you decide to respond, email your supervisor or HR and spell out why it is unreasonable. Perhaps the timeframe is not long enough, or the expectations are unattainable, or the company isn’t offering any support.
By spelling out the ways the PIP is unreasonable, it can protect your interests a bit in the event that you are later terminated.
Is the PIP retaliatory?
You should also think about whether the PIP is retaliatory. A lot of companies will issue a PIP in retaliation for the employee complaining about something illegal going on in the workplace or taking leave for disabilities or pregnancy, which is protected under the Family and Medical Leave Act (FMLA).
Leave is there for a reason. If you have a disability, if you have mental health issues, or if you’re pregnant, then you need to use your leave options because that’s precisely what they’re there for.
Unfortunately, I see all the time that companies perceive employees who take leave to be a burden. Companies don’t like when they have somebody out of work and they have to satisfy those duties, either by hiring somebody to fill in or asking somebody else to take on those duties.
This happens far too often across the US. When you look at other countries around the world — how they value leave and how much time off they give people — there’s more emphasis on quality of life rather than the American way, which is focused on the “grind.” American companies put so much more emphasis on the bottom line and making money and less on employee well-being.
If you believe your PIP is due to your company retaliating against you, then you can respond in writing; articulate what you believe the PIP is in retaliation for, and spell out the illegal conduct. Keep a copy of that email so that in the event that you do get terminated in the future, you’re preserving the record for purposes of litigation.
When I’m speaking with clients, I look at the full picture because, in many cases, I see a situation where an employee was a strong performer for many years and received good performance evaluations, but then they complained about something illegal or took protected medical leave and all of a sudden they received the PIP.
To me, that doesn’t add up. You don’t just suddenly become a bad performer when you have a documented history of strong performance reviews.
It’s better for companies to work with employees rather than use PIPs
My philosophy is that it’s better for supervisors to sit down, talk to the employee, and sort of nip issues in the bud as soon as they recognize potential areas of deficiencies and deal with them right away rather than letting things fester.
Most companies have already decided to terminate the employee by the time they get to a PIP. If I were running a business, I wouldn’t issue a PIP. I would just sit down with the employee once or twice and genuinely explain how I wanted them to get better. You can still have a paper trail by sending a follow-up email outlining what was discussed and areas for improvement.
The mindset around PIPs should change. Companies should want their employees to improve, and they should deal with problems early on rather than just issuing PIPs at the end of the employment and then terminating.
If companies are issuing PIPs, they should be implemented or issued only once the supervisors have already spoken to the employees about these issues. PIPs should be genuine, clear, and articulate what they want the employee to improve upon. They should give employees the opportunity to improve. I don’t think companies should use PIPs for the sake of trying to protect themselves from potential future issues.
If you’ve been put on a PIP or put someone on a PIP and would like to share your story, email Jane Zhang at janezhang@businessinsider.com.
