Performance Improvement Plans
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Sometimes a performance improvement plan (or "PIP") is exactly what it appears- a set of goals you need to reach to improve your performance at your job. Other times it can be a signal that your employer has decided to terminate your employment and is laying the groundwork by placing you on a PIP.
There is no specific legal remedy for being put on an improvement or action plan. However, if you believe the reason for the plan may be unlawful, it is not too soon to begin considering your legal rights. |
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Performance Improvement Plan: What is the Real Reason?
A critical question in this situation is what is the real reason for your employer raising concerns about your performance at work. If the issues raised in the plan ring true to you, and you know there have been issues or concerns before, you may be able to take the plan at face value.
If it is a surprise to you, or you believe the issues raised to be untrue or unfair, you should consider whether there was something else that triggered the bad performance review or the plan.
For example, have you recently taken family medical leave, reported sexual harassment in the workplace, or raised a complaint about being paid what you are owed? All of these are examples of protected activities, and if the performance management plan was motivated by any of them it could be considered retaliation. Other examples of protected activities are filing for workers compensation, reporting other forms of discrimination in the workplace, and in some cases reporting or threatening to report illegal activity by the employer.
Or, have you noticed that others who don't look or speak like you have comparable performance and were not put on a plan? If you are in a protected class under state or federal discrimination laws, singling you out for a performance plan could be discriminatory.
If it is a surprise to you, or you believe the issues raised to be untrue or unfair, you should consider whether there was something else that triggered the bad performance review or the plan.
For example, have you recently taken family medical leave, reported sexual harassment in the workplace, or raised a complaint about being paid what you are owed? All of these are examples of protected activities, and if the performance management plan was motivated by any of them it could be considered retaliation. Other examples of protected activities are filing for workers compensation, reporting other forms of discrimination in the workplace, and in some cases reporting or threatening to report illegal activity by the employer.
Or, have you noticed that others who don't look or speak like you have comparable performance and were not put on a plan? If you are in a protected class under state or federal discrimination laws, singling you out for a performance plan could be discriminatory.
How to Respond to the PIP
If you are handed an improvement plan in a live meeting, it is okay to ask for some time to review it and think about it before responding. Especially if the feedback came as a surprise to you, you will want a clear head to assess whether the things in it are true or fair, and whether you think you can meet the goals stated in the plan.
You will also want a little time to consider the possible reasons for the plan, as described above.
If you are asked to sign the plan, make sure that what you are signing is just acknowledging receipt of the document, not your agreement with what is written in it.
If you have any concern that the employer's actions might be retaliatory or discriminatory, you should not wait to raise that concern with human resources, or with whoever in your company or organization fills that role. This does not have to be elaborate or overly confrontational: "I am concerned that this plan might be the result of" whatever your recent protected activity was should be sufficient.
Finally, whatever the reason you believe was behind the plan, you should make your best efforts if possible to meet the goals set forth in the PIP. If the reasons were legitimate, this is the most important thing you can do to protect your job. If the reasons turn out to be unlawful, failing to meet those goals (again, assuming they are goals that are possible to meet) will give your employer evidence in defense of any claim you might bring later.
You will also want a little time to consider the possible reasons for the plan, as described above.
If you are asked to sign the plan, make sure that what you are signing is just acknowledging receipt of the document, not your agreement with what is written in it.
If you have any concern that the employer's actions might be retaliatory or discriminatory, you should not wait to raise that concern with human resources, or with whoever in your company or organization fills that role. This does not have to be elaborate or overly confrontational: "I am concerned that this plan might be the result of" whatever your recent protected activity was should be sufficient.
Finally, whatever the reason you believe was behind the plan, you should make your best efforts if possible to meet the goals set forth in the PIP. If the reasons were legitimate, this is the most important thing you can do to protect your job. If the reasons turn out to be unlawful, failing to meet those goals (again, assuming they are goals that are possible to meet) will give your employer evidence in defense of any claim you might bring later.
Performance Improvement Plan: When to Consult a Lawyer
Receiving a performance action plan or a bad review is not by itself grounds for a lawsuit, whatever the reasons. If you are ultimately terminated, that is "adverse employment action," and if the reasons are unlawful you can bring a claim against your employer.
The time between receiving a PIP and termination is therefore kind of a legal "no man's land." A lawyer can't usually stop the employer from terminating you if the employer's mind is already made up, and cannot sue based on the PIP alone.
Consulting a lawyer before termination, however, could give you useful information about how to proceed in the meantime. If there is a possible illegal motive for the action, an employment lawyer can help you understand how to make sure the right information is documented and the right people are aware of your concerns. Also, knowing whether you do or do not have potential legal claims can help you assess your situation and your future with your employer more clearly.
Finally, especially if termination seems inevitable, having an employment attorney on board who understands your situation and is ready to help you with legal action if and when you are fired can give you some peace of mind in the interim.
The time between receiving a PIP and termination is therefore kind of a legal "no man's land." A lawyer can't usually stop the employer from terminating you if the employer's mind is already made up, and cannot sue based on the PIP alone.
Consulting a lawyer before termination, however, could give you useful information about how to proceed in the meantime. If there is a possible illegal motive for the action, an employment lawyer can help you understand how to make sure the right information is documented and the right people are aware of your concerns. Also, knowing whether you do or do not have potential legal claims can help you assess your situation and your future with your employer more clearly.
Finally, especially if termination seems inevitable, having an employment attorney on board who understands your situation and is ready to help you with legal action if and when you are fired can give you some peace of mind in the interim.
How Our Employment Lawyers Can Help
If you have received a performance management plan and do not know what to do, we can help. We will help you assess whether the underlying reason for being on the plan might be unlawful, and whether there are any steps you should take right now to protect your rights. You can use the button below to schedule a call back from a member of our team, or give us a call at 781-784-2322.
