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

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.

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