Working for Justice

Being PIPed?! Dos and Don’ts

Posted April 5th, 2017 by in Employment Discrimination.

Click here to read the Chinese version of this post

“At-will employment” is the predominant employment relationships in the United States. Under at-will employment, an employer can terminate an employee at any time for any reason, except an illegal one (i.e. discrimination, retaliation, etc.), or for no reason. However, in order to minimize the possibility of being sued for wrongful termination claims, companies have been using various measures to document the steps leading up to an employee’s termination and to prove the legitimacy of a termination. One of the methods that have been widely used is PIP – the Performance Improvement Plan.

While strategic and advantageous to the employers, PIP is often an employee’s worst nightmare. Theoretically, PIP gives the employee an opportunity to improve his/her performance and stay at the company. However, in reality, PIP is often used as a tool and one step that an employer takes to terminate an employee. Most employees say that they’ve rarely seen or heard of anyone surviving a PIP – almost everyone who was put on a PIP ends up being terminated or voluntarily resigning while on PIP or shortly after it concludes.

I noticed that many employees have misconceptions about PIP, and I have also received many inquiries about how to properly handle the situation when one is put on a PIP. Though the content of PIP can vary across industries and companies, my analysis and advice below intend to provide employees with some fundamental understandings of PIP and strategies applicable to most circumstances.

First and foremost, it is often times very difficult for an employee to bring legal claims against the employer solely based on a PIP, no matter how absurd the employer’s decision is to put the employee on PIP, or how difficult the objectives of the PIP can be. Under U.S. employment laws, there must be an adverse employment action in order for an employee to raise a valid claim against his/her employer. Demotion, pay cut, and termination are considered adverse employment actions, but PIP is not one per se. Employees must work with an employment attorney to assess the nature of their PIP in order to determine whether any valid legal claims can be made.

So what should an employee do after he/she is being PIPed?

  1. Do not panic. Stay calm and carefully assess the situation. After receiving a PIP notice, an employee should immediately speak with his/her direct manager or the Human Resources to identify the reasons for the PIP, the details of the plan, its goals and objectives, and the employer’s expectation and evaluation method of the Plan. The employee should also analyze any possible work experience and incidents that might be related to the PIP, the content and details of the plan, and the tone of HR or management during the PIP meeting. After a careful analysis, the employee should engage in an open discussion with the employer, and assess whether the PIP is a good faith effort to improve his/her performance, or merely a tactic to get him/her out of the door. Being as difficult as it might be, the employee should always stay rational and professional during the course and should avoid using provocative language or behavior.
  1. An employee is usually asked to sign the PIP notice when he/she was notified of the PIP decision. He/she may sign the notice and make comments upon careful review of the content of the notice. Many employees refuse to sign the notice, thinking that doing so would be an admission of his/her bad performance as set forth in the notice. That is not necessarily the case. In general, a PIP notice acts as an acknowledgment that the employee has received the employer’s decision to put him/her on a PIP. The employer is likely to carry out the PIP regardless of whether the employee signs the notice or not. The employee’s refusing to sign the PIP notice might actually be interpreted as a failure to cooperate with the company to improve his/her performance. Of course, each PIP might be different, and an employee should always review the notice carefully before deciding what to do.

In addition, if the content of the PIP notice is false or inaccurate, an employee can, and should, raise his/her disagreement with the assessment of their performance on the PIP notice by making a note on the notice, or pointing out the incorrect information to his/her direct manager, HR, or upper management in writing. The employee can, and should, also request the note of his/her contest to be kept in his/her personnel file.

  1. Make an effort to complete the tasks and requirements of the PIP. Many employees ignore or refuse to comply with the PIP because they don’t agree with its content or the employer’s decision regarding the PIP. This is not a wise way to handle the situation. A PIP is by essence a project or task assigned by the employer for the employee to complete. If the employee does not take the PIP seriously, it would only give the company one more legitimate reason to terminate this employment relationship. Therefore, the employee should make efforts to complete the tasks in the PIP and to achieve its goals, even if he/she disagrees with or was enraged by the company’s PIP decision. The employee should also regularly check in with his/her direct manager or HR to follow up on the PIP progress, and ask for feedback. If the employer creates impossible tasks for the employee or deliberately makes things difficult, the employee should keep a detailed record and communicate with the employer promptly. There isn’t a set format for how to keep these records, but the records should clearly identify when and where did this incident happen, the parties involved, the details of the incident, and any final result or solutions. Please be advised that an employee should not record any conversation without others’ consent, nor should he/she delete any employer’s information without authorization. Such action is likely to be a violation of company policy, and also against the law in many states in the U.S.
  1. An employee should seek legal advice and help from an employment attorney as early as possible to avoid missing any deadlines to take legal actions. An employment attorney can help the employee analyze and assess whether an employer’s conduct constitutes a violation of employment laws, whether the employee can bring legal action accordingly, and if so, when to take such action. An employment attorney can also provide the employee with different options, being it to use the company’s internal complaint mechanism, or to engage in separation negotiation (such as severance agreement), or to file a charge with the federal or state agency, or to bring a lawsuit against the company.

PIPs can have many damaging effects on employees. Therefore, it’s critical that an employee follows an employment attorney’s advice and takes all necessary measures to protect his/her rights.

Please note: The content provided in this article is for informational purposes only and is not intended as legal advice or counsel.

Qiaojing Ella Zheng

Qiaojing Ella Zheng

Qiaojing Ella Zheng (郑巧晶 律师) is Senior Counsel in the SF office who is fluent in Mandarin Chinese and has extensive experience representing China-based clients in legal matters arising under U.S.laws. Learn More

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