By Mark Carey
Really, you’re going to give me a PIP after my dedicated years of service to this company? That’s “bullshyte”! If this sounds recently familiar, it should be. More and more and more employees are facing PIPs (Performance Improvement Plans). (See related PIP articles we have written about HERE and HERE). Here’s the bad news, the odds are you are going to get fired no matter how you react to the PIP. It’s like being unfriended or canceled, because your presence and contributions to the office are no longer valued. The good news is I have a few ideas to promote your leverage and set yourself up for a severance/settlement package, even where one would never be offered to you. There is one catch, do not do this without an employment attorney.
According to SHRM (Society for Human Resource Management), a PIP “is a tool to give an employee with performance deficiencies the opportunity to succeed. It may be used to address failures to meet specific job goals or to ameliorate behavior-related concerns.” Ugh! A PIP is a tool to set you up on a rotisserie and slow cook you until you are fired 60-90 days later! I have never seen in all my years of practice a PIP that was even remotely justified. I am not alone in my disgust of this ancient and crusty management employment practice, Forbes published a story in July 2019 sounding the alarms entitled “It’s Time We Finally Do Away With Performance Improvement Plans”.
A PIP is more like the red paddle in the grade school principal’s office that she used to enforce the rule of law through corporal punishment. (In reality, my principal was a gem of a lady, but you get the point!) The PIP screams at you to comply, but for what? You were already working at a 110% capacity, and every performance review up to that point was exceeds or average. So what is the story here? Is it your gender, sexual orientation, race, age, etc. that caused you to receive a PIP? Unfortunately, it is highly likely. Yes, I am jaded, but at least I know the statistics and how routinely this happens to our clients.
As background for this article, I conducted a bit of legal research among employment discrimination cases that mentioned or discussed the use of performance improvement plans. I wanted to reaffirm what I already knew to be true, that PIPs are used to set employees up for termination and courts often let employers get away with it. Performance Improvement Plans are a means to an end- the end of your job! Although I enjoy working with my colleagues from the bench, in almost every case I found, the court upheld the validity of the PIP given to the employee. Why is that? You need to understand that Courts are extremely reluctant to second guess employers; they seek to avoid becoming Super-HR Departments. I did discover a few cases where the performance improvement plan was viewed negatively by the courts, only because the employee was successful in demonstrating a discrimination case at the summary judgment stage of the case. Specifically, and as I will show you below, the employee was able to factually demonstrate evidence of intentional discrimination in and around the administration of the performance improvement plan, i.e. the employee was able to establish the employer’s reasoning behind the PIP was pretextual or false. However, the odds currently favor employers, and we seek to change those “Vegas odds” by empowering you with the following tricks of the trade.
Now with all of this information in hand, let me show you how to beat a Performance Improvement Plan. FYI – I have thought about these comments over a period of weeks to ensure the following strategy points were realistic, practical and successful.
1. NEVER SIGN THE PIP UNDER ANY CIRCUMSTANCES AND START LOOKING FOR ANOTHER JOB
Employers always demand that employees sign their performance improvement plans. We advise our clients not to sign them, so as to avoid any level of consent or acknowledgment to the bogus narrative strung through the PIP by the employer. You are getting fired anyway, so why worry about the threat that you will be fired if you refuse to sign it. The moment you take a step in the direction to admit anything on the PIP was correct, or the very fact that your received one, your future employment case is doomed! Receiving the PIP demonstrates you were put on notice of it and the employer will hold you to whatever bogus goals they established for you. I have seen this play out in court where a federal judge held my client to the PIP just because she received it, even though she did not sign it. Hopefully for you the next job will be better and management will be more employee focused and enlightened.
2. WRITTEN PIP REBUTTALS AND CORPORATE WHISTLE BLOWING
Do a 180 degree turn on your employer and show them in writing the PIP you just received is part of a systemic problem related to flawed quality control measures, clearly established violations of the Sarbanes-Oxley internal compliance rules, outright corporate fraud, and discrimination. If they don’t pay attention, well then let them freeze in litigation hell with the authorities. Employers who receive internal complaints also face external scrutiny from the Securities Exchange Commission (if the event involves a material misrepresentation of financial information and is reported directly to the SEC), the U.S. Dept. of Labor (regarding wages) and the U.S. Equal Employment Opportunity Commission (regarding discrimination and retaliation, although in my experience getting the EEOC litigation department to pay attention is like pulling teeth). Bottom line, if you are a true professional, then your demonstration of proper and ethical corporate practices via your PIP rebuttal and whistle blower claim will protect you from any future allegations of corporate malfeasance or spurious claims of breach of duty of loyalty and care (“aka” attack claims used by defense counsel to make you feel insecure). You must not go down with the sinking corporate ship and your professional reputation must remain intact. Afterall, you have personal financial obligations to protect.
3. AN ALL OUT FULL FRONTAL ATTACK
I have a skiing motto amongst my knucklehead buddies, DROP IT LIKE IT’S HOT! (also a song by the same name, listen here). This was on a sign posted before entering an avalanche prone area at Targhee in Wyoming. When dealing with your unscrupulous employer regarding the PIP you just received, you are going to pull out ALL the guns.
First, get your facts straight, no I’m not kidding. Set your facts to paper in chronological order, because there are inferences, large and small, that flow through and between your fact pattern. Start with the day you were hired and move forward to the date of the PIP and then beyond. You want to specifically focus on your prior performance reviews, manager comments and your own comments. Pull the PIP accusations apart and factually rebut them contemporaneous with your fact pattern. You also want to look around and see if anyone else in your department was treated more favorably than you in any way. Chances are they were. Internal corporate counsel and HR just do not have the time resources to monitor every employee/supervisor relationship. Yes, there are bad eggs inside every organization- this I know to be true and it keeps my firm busy like bees. Keep a wide eye for all possible protected classifications you may fall into and the classifications of your colleagues. Is age, gender, sexual orientation, race, disability, sexual harassment etc. playing a part in the decisions your employer is making with respect to your job? You will need to report factual situations where your colleagues were treated more favorably than you in your attempt to show how discrimination or retaliation was the real motive behind your supervisors’ PIP accusations.
Next, file an employment discrimination complaint internally to HR, copy to your boss and your boss’s boss. In one case a few years back, I sent the sexual harassment complaint to the CEO’s wife- it worked out in my client’s favor. All it takes is a simple email stating you are being discriminated against. Next, take your detailed factual chronology and file an administrative complaint with the EEOC and the relevant state agency. These two acts will insulate you against immediate termination during the PIP and begin to build a case for retaliation discrimination when you do get fired or demoted. Remember, internal complaints and complaints to the EEOC are not subject to google searches, so your claims are confidential at this point.
Now that you have effectively blocked or checked your employer’s nonsense, start to think about what you want to do with your new found legal leverage. Normally, our clients start negotiating severance terms, which will eventually lead to your signing a complete release and waiver of your legal claims in exchange for MONEY! If you are lucky and have a good claim with well supported facts, you can negotiate the right dollar amount to transition you to the next job.
If you are not so fortunate and your employer continues to give you the cold shoulder, the next step is to file a lawsuit. I do it everyday, but for you it’s not so normal. Also, you need to consider what effect if any having your name appear on a lawsuit out there on the internet. People do it all the time, so you just need to get comfortable with this small but significant caveat. Well, now that you are off to the races there is some hope of a settlement during litigation, as 98% of all cases settle at some point in the process. We live in an era of evaporating trials, which is a good sign that parties work out deals. But if you continue to receive the cold shoulder, as we sometimes do in 20% of all cases, then settle in for a lengthy litigation and the associated financial expense. Please remember to maintain your full frontal attack posture at every stage mentioned above, as psychology and public exposure play an enormous role in every case. Good luck and drop it like it’s hot!
4. FIGHT WITH FACTS BUT NO LEGAL CLAIMS
Ok, so you went through this article and you realize you don’t have any legal claims to stand on, what do you do? You also can’t leave your job because you need the income. This is a tough one and I see it quite often. You just have to hunker down and face that freight train head-on. Who knows, you may just survive the Vegas Odds. Go through the PIP and create a word document, breaking down each section and write a rebuttal. Ignore any employer resistance to your filing a rebuttal or lack of space on the PIP document. Under each accusation of poor performance, locate and list objective facts that demonstrate your point of view. Hell, throw in your contributions to the financial performance of the company over the past five years, i.e. you saved or made them money. We will assume here that your performance was not flailing, but your employer wants to hire his colleague from another job to replace you. All you can do is send a letter containing your factual arguments to each of the purported performance problems. Send the letter to your boss, to your boss’s boss and to the HR Department. I would also encourage you to dig down deep into your corporate culture and try demonstrating that you are committed to a lengthy career with this employer. Show them you bleed corporate colors, but make it believable. Next, get on the campaign wagon and start networking internally, letting everyone know you are as corporate loyal as it gets. Finally, say some prayers and go buy a few lottery tickets. Good luck, you’ll need it
5. QUIT AND DON’T LOOK BACK- IT’S CHEAPER
This last strategy begs the question of how you define success here. Sure, you can hire a lawyer and fight the employer and potentially find yourself in a lawsuit and legal fees. Not spending money on a lawyer is a practical option that most employment lawyers will not advise, but we do. Leave your employment immediately and save the time, expense and anxiety related to dealing with a PIP. A PIP is really just an employer’s way of saying “here is the writing on the wall please leave”. I actually prefer the employer just terminate the employee instead of putting her through an unnecessary and worthless process. No one learns anything from a PIP, not the employee and not the employer. There is no management epiphany that causes further efficiency within the organization. What there are a lot of are scorched professional reputations and deeply diminished corporate cultures. Really, who wants to work in an office that promotes this sort of thing, no one. Yet, management continues to follow this tortured practice. Give me a break and give yourself a break- RUN!