Your Boss is Putting You on a Pip: Now What?

According to the Society for Human Resources Professionals (SHRM), a performance improvement plan (PIP), also known as a performance action plan, is a great way to give struggling employees the opportunity to succeed while still holding them accountable for past performance. Really?

I think most people that have ever been placed on a PIP will disagree and cast a new definition along these lines: A PIP is an employer’s way to document deficiencies in the employee’s performance that will eventually lead to the employee’s termination. Rather, a PIP facilitates the employer’s goals, not the employee’s. Thus, PIP’s are often used to “paper” an employee’s file to legally protect the employer from claims by the employee alleging “wrongful termination.”

In 15 years of practice, I have never seen a situation where an employee was able to recover from a PIP and remain employed in a way that the employer found satisfactory. In virtually every case I have handled where an employee was placed on a PIP there were two outcomes: unilateral termination by the employer or a resignation brought about by effective strategic planning and negotiations between the employee’s attorney and the company. The employee that engages counsel early has a clear advantage over the employee that engages counsel deep into the PIP or not at all.

The big question is how can you predict if your boss is going to put you on a PIP? The following are situations I have seen that are a precursor to a PIP:
1. Repeated “conversations” with your manager about shortcomings in your work (it does not matter whether you agree or not; what matters is your boss perceives these shortcomings);
2. A culture where employees are placed on PIP’s as a way of managing performance rather than a culture where employees are developed through good leadership and training;
3. Written “warnings” which can sometimes come in the way of casual seeming emails;
4. Actual shortcomings and challenges you know you are having (sometimes these stem from poor job fits to medical issues the employee or a family member is having); or
5. Being seen as the factor that brought about a negative outcome for the company.

So, if you are anticipating a PIP, what do you do?

1. Request a copy of your personnel file: Illinois law provides that every employer shall, upon an employee’s request, permit the employee to inspect any personnel documents which are, have been or are intended to be used in determining that employee’s qualifications for employment, promotion, transfer, additional compensation, discharge or other disciplinary action. If your employer omits documents that later mysteriously appear, the employer could be barred from using those documents in a proceeding against you (such an unemployment benefits hearing);
2. Review your employee handbook. Review the handbook for any sections that discuss discipline to ensure the employer is following its own policies. Make sure to print or keep at home a copy of the handbook;
3. Retain other records: Save documents concerning your work performance and any relevant emails, but do not remove confidential information of the company’s from the premises.
4. Mentally prepare yourself for the PIP meeting. Most white-collar job duties are ill-defined and performance is often subjectively assessed. Do not admit to anything but listen to what your manager. Most importantly do not sign the PIP. You will be told that you are merely acknowledging receipt but a jury might not be able to wipe from its memory the fact that you signed the document which could be viewed as agreement to its contents. If your company says it will fire you if you do not sign the PIP, request that you have counsel review it first. If you are denied this option then sign it but write a simple statement with your signature along the lines of “my signature merely shows receipt, not agreement with the contents herein, under threat of termination if I do not sign this.”
5. When to contact an attorney. At this stage, if you have not already done so, contact a qualified employment attorney. By “qualified” I mean an attorney that has skill and experience navigating leaves of absence and negotiating work separations for employees, not just someone who knows how to litigate.

Once you meet with an attorney (most good attorneys who do this type of work charge for their consultations), a few things should happen. The attorney should interview you to obtain the important facts of your situation. Since you have been placed on a PIP, the attorney should inform you of your rights under various leave laws. Most employees going through a PIP at work have insomnia, anxiety, anxiousness, anger, depression, loss of appetite, abuse alcohol or drugs to cope, etc. These clinical symptoms require a professional to assess the employee and ask for leave from the employer for medical “time out.” Such a time-out enables the employee to cool off and be away from the day-to-day stressors of the work environment.

Once you engage counsel, your attorney can help you navigate your leave of absence, request that the employer hold the PIP in abeyance, and negotiate your departure from the company. An advocate enables you to have some power in how you leave the company. It is always better to depart on a mutual basis than by an employer’s unilateral decision. Structuring your departure can produce numerous hard and soft benefits. Such benefits can include severance pay, early retirement, incentive payout, payment of accrued vacation time, payment of COBRA, agreement to not contest unemployment, agreement to provide a letter of reference highlighting employee’s positive work traits and accomplishments, career counseling, etc. It is always best to go out on the door with your head held up high than being escorted out the door by management with a box in your hands.

Do I Need an Employment Attorney?

Regrettably, most working professionals who need an employment attorney either do not engage one or wait until the employer has gained too much of an advantage over a situation before hiring one. A qualified employment attorney can assist working professionals in a variety of ways outside of the obvious–litigation. The majority of employment disputes are not litigated. Rather, they are resolved between the parties–the employer and the employee. In employment disputes, it is a given that the employer has qualified counsel. I know because I have been in that role. Thus, it is important for the employee to see the need to level the playing field and to also have qualified counsel. Many employees get intimidated thinking the cost of counsel is out of their reach. Or worry that getting counsel will upset their employer and lead to retaliation of some sort. But when one considers what is at stake–one’s livelihood–it is difficult to see what can be a more important investment than qualified counsel to protect their professional reputation and ability to continue earning a good living.  Often, counsel can work in the background advising an employee without the employer ever knowing the employee has counsel.

Employees sometimes think they have no options if they face adverse action. Although it is true that in  most states an employer does not need cause to terminate an employee, exceptions have swallowed the rule. A qualified attorney will quickly identify these exceptions and go to work for the employee. Such exceptions can provide for bargaining power in negotiating severance or benefits from the employer. In addition to monetary outcomes, other creative outcomes are equally important to achieve: an agreement that the employer not contest unemployment, release from a restrictive covenant, obtaining a letter of recommendation, payment of the employee’s COBRA for a set amount of time, agreement to inform prospective employers that the separation was a reduction in force, outplacement services, etc.

The following events are ground-zero triggers for when an employee should retain counsel:

• Negotiating a job offer (think about all the pesky paperwork that has enormous ramifications down the road including incentive pay structures, retirement pay, restrictive covenants, assignment of inventions, protecting the contact list you brought to the employer, etc).
• When your workplace conduct or performance is addressed by management.These conversations typically lead to more down the road. If you receive a written warning always ask to have counsel review anything you are asked to sign even if you are told your signature does not indicate assent to the contents but only verifies receipt of the document.
• If you or a family member has an illness or chronic health condition that might require time away from work or reasonable accommodations to allow you to work.Various laws protect you and require your employer to explore if an accommodation can be made. Additionally, various laws require your employer to restore you to your job upon return from certain leaves of absence.
• Pregnancy: If you are pregnant or a father expecting a child and deciding how and when to make the announcement to management various laws protect you from adverse action.
• Inappropriate conduct: If you believe a manager, co-worker, vendor, or client are subjecting you to inappropriate conduct;
• If you are terminated.
• If you are informed your position is being eliminated as part of a layoff.

At the end of the day, you have to take charge of your professional destiny and empower yourself legally. The workplace has changed dramatically in the last two decades with mass layoffs becoming the norm and short term employment situations overshadowing long term employment situations. When things start going wrong it is crucial to curtail the professional fallout especially if you plan to continue to work.