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Carey Quoted: How Performance Improvement Plans Backfire Against the Workers They’re Supposed To Help

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By Mark Carey

We have previously written about Performance Improvement Plans on this site HERE and HERE.  Simply, PIPs are dysfunctional and designed only to protect the employer from liability.  They do not serve any legitimate business purpose and do not protect employees whatsoever. 

The new Politico media startup Protocol.com published an article entitled “How Performance Improvement Plans Backfire Against the Workers They’re Supposed to Help”.  The tag line states, “PIPs are controversial for a reason, but they don’t have to be the kiss of death. Here’s how to navigate one.”

Last week the reporter Michelle Ma* interviewed me for this important and extremely relevant news story.  Overall, this article sheds additional light on the use of PIPs and provides an objective point of view from both sides of the employment relationship. Here are some excerpts from the article.

“In theory, PIPs are meant to help the people who are placed on them to get back on track and succeed at their jobs. In practice, they are often a box-checking mechanism for employers looking for legal protection before firing someone. According to lawyers, HR experts and tech workers that spoke to Protocol, PIPs are more often than not the kiss of death and — in the hands of the wrong manager — leave little room for employees to actually improve their performance and come out alive, even if they make a good-faith effort.”

“Mark Carey is a managing partner at Carey & Associates, an employment law firm based in Connecticut. In his experience, only about 5% to 10% of PIPs result in an employee staying on at the firm.”

“Employers often rely on PIPs as a way of “covering their bases” and preventing liability in the case that the employee sues, often on the advice of their legal counsel, according to Carey. In those cases, “these PIPs are not intended to be survivable; the employee is not going to win.” In his view, PIPs can be an effective device to “build a cause basis” and are often used in court as evidence to support the argument that there were performance issues. As a result, courts will often side with employers during litigation, he said.”

“In Carey’s experience, retaliatory PIPS are quite common, as high as 75% of the cases that he’s witnessed. He calls it a “designed punishment mechanism,” often issued when an employee complains about a manager. Carey thinks companies often rely on PIPs simply because it’s the default management tool, a kind of “follow the leader” approach doled out without any consideration of its effect on employee retention or corporate morale.”

What To Do If You Are Placed On A PIP?

“Carey also recommends that people who’ve been placed on a PIP gather documentation to support their rebuttals. Break the PIP into its subcomponents and use facts to rebut each point, if possible. If you’re able to, it’s likely that there is “something else going on,” like gender or age bias. He also cautions clients to “not get emotional” and instead use facts to push back against any groundless claims. Even if you don’t win, it sends a signal to the company that the PIP will be challenged, giving the employee more leverage in potential severance negotiations.”

How to Implement a PIP Correctly?

“HR experts have some tips for managers who want to conduct a PIP in good faith. For starters, the acronym itself comes with so much baggage, it’s worth considering calling it something else. “‘It has come to mean, ‘We’re going to fire you,’” said Rutledge-Parisi. She prefers to frame it to employees as, ‘We’re going to write out a plan to help you get back on track.’”

“The second tip is to make sure you do everything you can to give as much feedback and constructive criticism to the employee in question first before you resort to a PIP, Rutledge-Parisi added. The person who is put on a PIP should not be surprised about the issues that are raised in the PIP. If they are, you’re not doing your job as a manager. Think weekly 1:1s, explicit written feedback and frequent check-ins.”

“A PIP should never be the first step, Carhart said. The company culture should also be one where people feel “safe and empowered to give each other constructive feedback,” he said. There really should be “some level of progressive discipline” before you even get to a PIP, said Ghassemi-Vanni. “Earlier intervention is the best medicine.””

“Also, make sure you’re having frequent check-ins during the course of the PIP, as well as giving the employee ample time to complete it. 30 days should be the minimum amount of time for a PIP; any shorter “feels a bit fake and draconian,” she said. The PIP should be long enough for the employee to actually be able to “demonstrate progress against the things that they’re falling short on,” Carhart said.”

If you would like more information about PIPs and to retain Carey & Associates, P.C. to review your PIP, please contact our offices at 475-323-6166 or send an email to info@capclaw.com.

*Michelle Ma (@himichellema) is a reporter at Protocol, where she writes about management, leadership and workplace issues in tech. Previously, she was a news editor of live journalism and special coverage for The Wall Street Journal. Prior to that, she worked as a staff writer at Wirecutter. She can be reached at mma@protocol.com.

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